Family Planning Bill, 1973: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Mrs. Robinson

When this debate opened last night I omitted by an oversight to welcome the Minister for Justice to the debate, and indeed I look forward very keenly to his contribution to this debate on family planning later today. I should like now to welcome the Minister for Education to the House for this debate. I think it is perhaps particularly appropriate that the Minister for Education would also be present during the discussion on family planning because, as I said last night. we are not just talking about the exercise of a right to family planning. We are also talking about access to means of information and education on this whole subject of family planning. So he is a very appropriate Minister to be present at this part of the debate.

Last night I described the task before the Seanad as a two-fold one: first of all, to regularise the position following the Supreme Court judgment in the McGee case which has given rise to an unsatisfactory state of the law. I described in detail the extent to which it is unsatisfactory in not providing sufficient controls in the public interest and in not providing that people can inform themselves properly about the dangers to which they are at risk in importing contraceptives from outside this country without proper supervision and guidance.

I said that the second task of the Seanad is to promote the basic human right to family planning which has been recognised on the international sphere and which was also recognised for us by the judges of the Supreme Court, by allowing access to choice of means on the subject and by allowing full information and guidance on it.

Today I want to deal with this question of the appropriate controls which we as Members of the Oireachtas ought to consider in recognising the right to family planning and recognising the right of access to information on it. Family planning itself is clearly in the realm of private morality but the law regulating its exercise is an issue of public morality. It is a matter for the concern of the Seanad to ensure that there are adequate safeguards and controls to prevent the abuse and exploitation of the situation. This is important in the public interest and it is rightly our concern in considering any measure relating to family planning. It involves an understanding of the nature of law and of the limits of law.

The criminal law cannot be used to enforce standards of private morality. It can only create a framework of control within which individuals, and particularly young people, can be protected from abuse and explotation. For example, it is important for us to remember that the criminal law does not regulate extra-marital sex at present. It is not a crime to commit adultry. The criminal law does not regulate extra-marital sex for the very good reason that it knows its own limits. Similarly, we must be concerned to draft a law which will be enforceable, which will have the respect of the citizens of this country and which will not try in its terms to exceed its own possibilities. We must not provide for controls and safeguards which we know, as we pass this law—and the citizens of the country will know—have no meaning because they cannot be enforced, and consequently do not demand or require our respect.

In other words, there are limits to the controls which can be introduced by law in regulating this subject of family planning. These controls must always be considered in the context of promoting a basic right and of allowing full access to information so that individual citizens can exercise that right. It is our function in examining proposed legislation to consider which controls are appropriate in the sense that they are both justifiable and enforceable. It would be wrong for Senators and Deputies to be influenced by a climate of opinion, by a fear of a grassroot reaction and by worries about this subject which has been very widely debated. Also it would be wrong for them to be influenced to introduce controls which they know would be unenforceable and unjustifiable and which would bring the law into disrepute and into contempt by the public that they were purporting to protect.

As proposers of this Bill we considered very carefully the question of the proper controls and safeguards which should be introduced. We decided that the realistic and proper safeguards would be to provide for control of venue and for control of advertising. This would prevent the appearance of slot machines distributing contraceptives, which would be considered to be an abuse. It would also prevent the exploitation of young people and the offence to the public in general caused by extensive advertising of contraceptives. In our view it is proper and appropriate for the law to control both the venues at which contraceptives would be available and the way and the extent to which they could be advertised to the public and particularly to younger members of the public.

Turning, then, to the provisions of this Bill, in the knowledge that the controls in it must be justified as being enforceable and as being appropriate in protecting the right to means of family planning and the right to access to choice of means and information on the subject: the first major change proposed in this Bill is to take the subject out of the realm of the criminal law—leaving only a residual safeguard of control there—and into the realm of health under the jurisdiction of the Minister for Health. We do not take the subject entirely out of the sphere of the criminal law —we leave the penalties contained in the 1935 Act for those who go outside the framework which we have provided and therefore are engaged in the illegal sale, advertising, et cetera, of contraceptives. That is the proper function and limit of the role of the criminal law in this sphere.

We move the remaining jurisdiction into the area of health. We are allowing the Minister for Health to have the primary role and function in deciding, for proper health reasons, the venues at which contraceptives should be available; the contraceptives which should be available on prescription only; and the extent to which contraceptives can be advertised in the country.

Section 1 of the Bill is the Short Title—"This Act may be cited as the Family Planning Act, 1973." Section 2 gives the Minister for Health the power to make regulations which will determine to a large extent the scope of operation of the Bill.

Section 2 provides:

(1) The Minister for Health may make regulations in relation to anything referred to in this Act as prescribed.

(2) Every regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next subsequent 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

This, as Members of the Seanad will recognise, is a standard form of control through bringing orders made by the Minister back before the Houses of the Oireachtas. It is a stronger form of control than is the more common one in that it requires an affirmative resolution by the Houses of the Oireachtas, positively approving the regulations made by the Minister for Health. It would ensure that we would have at all times the possibility of viewing the operation of this Bill in practice; of viewing the way in which regulations were issued under it and a possibility of having a debate on the subject, and if necessary refusing to approve the regulations made by the Minister for Health.

Section 3 amends but does not repeal section 17 of the Criminal Law Amendment Act, 1937, and therefore leaves this residual fallback position for the criminal law that—other than as authorised by this Bill—if a person sells or advertises contraceptives in an illegal fashion he will still be subject to the penalties of the criminal law as provided in the 1935 Act.

This section provides:

Section 17 of the Criminal Law Amendment Act, 1935, is hereby amended by the deletion of subsection (3) and the substitution of the following subsection for subsection (1):

"(1) Nothing in subsection (1A) of this section shall be construed as prohibiting the supply or sale of contraceptives to or for resupply or resale to persons entitled to supply or sell them in pursuance of subsection (1A) of this section or the keeping or offering of contraceptives for sale for such purposes only.

(1A) Subject to subsection (1) of this section it shall not be lawful—

(a) to supply or to sell or to offer or keep for sale any contraceptives except in an open shop kept for the dispensing and compounding of medical prescriptions to which section 2 of the Pharmacy Act, 1962 applies or in prescribed premises or in premises of a prescribed class,

(b) to supply or to sell or to offer for sale any prescribed contraceptive except in accordance with a written prescription signed by a registered medical practitioner, and

The effect of this section is that it would be lawful to supply or to sell contraceptives in chemists' shops, but the Minister would prescribe by regulation those contraceptives which would be available on prescription only. The Minister for Health is the appropriate person as he has access to the proper medical information as to which contraceptives should be available on prescription only, and what safeguards are necessary to protect the health of the citizens of this country and to ensure that they do not —as they can at the moment—import contraceptives without any guaranteed medical supervision and without any adequate information. It would not be lawful then to sell or supply the contraceptives which are described as being available on prescription only except on medical prescription. The control of advertising and exposure of advertising about contraceptives would be regulated by the Minister for Health. If anybody went outside this framework they would be contravening the law.

As well as that, the section provides that these contraceptives would be available in chemists' shops and enables the Minister for Health to expand the venue. The Minister for Health is the appropriate person to have a comprehensive understanding of the needs of the community and to have a knowledge of the various other venues which would be appropriate, such as hospitals, clinics, venues of that sort. Once again we think it is proper that the structure be a flexible one. These venues might be increased if the public need is seen and if there is hardship in confining the availability of contraceptives to certain venues or confining them to the venues provided for in the Bill, namely, to chemists' shops.

Section 4 (1) provides:

(1) Section 16 (1) of the Censorship of Publications Act, 1929, is hereby amended by the deletion of the words, "the unnatural prevention of conception or".

(2) Section 17 (1) of the Censorship of Publications Act, 1929, is hereby amended by the deletion of the words "or preventing conception".

I will take section 5 with this section because I think they can be examined together. Section 5 (1) provides:

(1) Section 7 of the Censorship of Publications Act, 1946, is hereby amended by the deletion of the words, "the unnatural prevention of conception or" and "prevention or".

(2) Section 9 (1) of the Censorship of Publications Act, 1946, is hereby amended by the deletion of the words, "the unnatural prevention of conception or" and "prevention or".

I think that it is important to emphasise again that the advantage of legislating about a matter rather than bringing a court action which declares a particular section of the law unconstitutional is that we can provide a comprehensive and coherent framework relating to family planning. An essential part of that framework is that we amend the laws which prevent responsible books and periodicals about family planning from being available to the citizens of this country. It would be a very real injustice on the part of Members of the Oireachtas if we legalised the availability of contraceptives and neglected to legalise access to information so that people could not uniform themselves responsibly and be guided on the use of contraceptives in family planning.

The provisions which we propose to amend in these sections relate, first of all, to the prohibition of advertisements advocating contraceptives. Reference is made in these provisions to the words "unnatural prevention of conception". In repealing this phrase relating to the unnatural prevention of conception we are aware that the very wording itself is unjustifiable because it implies that this method is unnatural so that the censorship law would be prescribing what is "natural" and "unnatural". In this area, too, we would be discriminating in a denominational sense by adopting one particular viewpoint on what is natural and what is unnatural in relation to family planning. For this reason also—and it is an important reason—we ought to repeal these provisions of the Censorship Acts. It is not, I would admit, open to us in Irish society to dictate in our laws which methods are natural and which are unnatural as methods of prevention of conception, and in doing so imply that we adopt the viewpoint of one denominational church. The inference would be that we do not respect the viewpoints of the other churches on this, or that we do not respect the viewpoint of individuals who claim that the various methods of family planning and the various types of contraceptives they might use are as natural as any other operation, drug or appliance.

We do not describe some operations, drugs or appliances as being "natural" and some as being "unnatural"; and we cannot in our criminal law distinguish between a thermometer and other forms calling one form natural and another form unnatural. We cannot do so, if we want to foster respect for the institutions of the State; if we want to safeguard the civil rights of individuals, and if we want to respect their freedom of conscience and their freedom of moral outlook on this subject.

Section 17 of the Censorship of Publications Act, 1929, relates to the amendment of the Indecent Advertisements Act, 1889. It provides that:

The reference contained in section 3 of the Indecent Advertisements Act, 1889, to printed matter which is of an indecent or obscene character shall be deemed to include advertisements which relate or refer, or may be reasonably supposed to relate or refer, to any disease affecting the generative organs of either sex, or to any complaint or infirmity arising from or relating to sexual intercourse, or to the prevention or removal of irregularities in menstruation, or to drugs, medicines, appliances, treatment or methods for procuring abortion or miscarriage or preventing conception.

Anybody listening will find that to be an extremely broad exclusion of any advertisement relating to any of these matters. Curiously enough, here we do not have any reference to the word "unnatural". Thus it includes a prohibition of advertisements of all methods—including the Billings method, including so-called "natural" methods of family planning. Since 1929, when the mentality was one not of approval of family planning but of a quite different outlook on the subject, the attitude of the whole population has evolved, and the situation has changed dramatically.

As I said at the start of my contribution last night, all churches now approve of family planning. Yet we have here a total prohibtion of any advertisement of any methods— natural and so-called unnatural— relating to family planning. What we propose to do in the provisions of the Bill before the House is to remove this blanket prohibition, which I do not think anybody, looking at it intelligently, could stand over. Instead, we propose to allow the Minister for Health in the public interest and with concern for public morality, to regulate advertisements on the subject. We would maintain that that is the proper balance. The Minister for Health is in a position to know what the need is for certain advertisements so that people can have knowledge of and access to various types of contraceptives. He will know how to prevent public abuse and exploitation and the sort of distress that could be caused by over-advertising of these devices in the organs of the public media.

Turning to the Censorship of Publications Act, 1946, section 7 provides:

If the Censorship Board, having duly examined a book, are of opinion

(a) that it is indecent or obscene, or

(b) that it advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or procurement,

and that for any of the said reasons the sale and distribution in the State should be prohibited, they shall by order prohibit such sale and distribution...

This effectively prevents the sale and distribution of books which are said to advocate the unnatural prevention of conception. As I said, this section merits repeal for its very wording— for the use of the word "unnatural", which is not open to us, as parliamentarions, to use and to distinguish between "natural" and "unnatural" in this way, because that distinction is based on a denominational and discriminatory view of methods of family planning. As the law stands under this provision, contraceptives are available in Ireland for use, can be distributed, can be manufactured and can be imported, but they cannot be read about in a responsible way. A person who wishes to inform himself or herself about contraceptives cannot get in the ordinary bookshops responsible literature about family planning. I do not think any Member of Parliament can be happy about that situation. That is one of the real dangers of the present situation: that people in their ignorance will do themselves harm or suffer an injustice as citizens because they cannot inform themselves properly.

We ought to be aware of the irony that a lot of the discussion about this subject of family planning has been confused and distorted and uncharitable, because people have not been able to inform themselves under the present state of the law about the subject. How can people address themselves with proper concern, compassion and understanding on this subject, if they cannot under our laws inform themselves about it? Here, I make a direct appeal to the Minister for Education for an understanding of the importance of education on this subject. We must allow people to inform themselves: in other words, we must as a priority repeal these proviisions of our censorship laws.

Section 9 is very similar to the section to which I have just read: it relates to periodicals and provides:

The Censorship Board shall examine the issues recently heretofore published of every periodical publication in respect of which a complaint is made to them in the prescribed manner by any person, and if they are of opinion that the said issues

(a) have usually or frequently been indecent or obscene, or

(b) have advocated the unnatural prevention of conception or procurement of abortion or miscarriage or the use of any method, treatment or appliance, for the purpose of such prevention or procurement, or

and that for any of the said reasons the sale and distribution in the State of the said issues and future issues of that periodical publication should be prohibited, they shall by order prohibit the sale and distribution thereof accordingly....

This would prevent the availability of periodicals which had in past issues advocated the use of artificial means of contraception, called again in the section "the unnatural prevention of conception". This is wide enough to prevent medical periodicals from appearing which advocate contraceptives. We know that they do appear; we know that this is an example of the law being in contempt, of the law not being enforced for very good reason. It would be wrong in present circumstances to enforce this provision of the law; and we cannot be happy to see a section of the law on our Statute Books which we do not want to be enforced for medical reasons, for the protection of the citizens of the State.

So much, then, for an examination of the structure of the Bill; for our concern to have the appropriate and enforceable safeguards in the Bill which would repeal the existing law and change the emphasis from criminal law to health by giving the Minister for Health power to make regulations under the Bill.

We have made it clear that we are open to consider amendments to this Bill. We do not regard it as a blueprint or as the perfect solution. We are concerned that the Seanad give it a fair appraisal and that Senators examine the degree to which we have protected the public interest by writing in controls. If they feel that other controls or, perhaps, in some areas, less controls, might be appropriate, then we would be prepared to consider that type of amendment on Committee Stage.

I should like to give an example of the type of amendment which I could see coming from the floor of the Seanad. In section 3 of the Bill we had repealed the subsection of section 17 which the Supreme Court have now declared unconstitutional. This refers to the ban on the importation of contraceptives. In the light of the sort of framework which we have provided in this Bill—legalising sale in Ireland of contraceptives at certain venues and in certain circumstances if on prescription—there might be a case for considering again whether there should be a total removal of the ban on importation, in other words, whether there should be safeguards put back on importation so that people, if they want contraceptives, will acquire them in Ireland, under the controlled situation provided in Ireland and with the medical supervision in the case of contraceptives which require to be by prescription only.

One might very well say that in those circumstances one might re-establish a certain control in relation to importation. Of course, this would be perfectly constitutional, because the whole reason behind the Supreme Court's decision was that the unavailability of these types of contraceptives within our country resulted in the unconstitutional nature of the prohibition, because it prevented Mrs. McGee from exercising her right to family planning.

The Supreme Court cannot legislate in a coherent fashion. It can only do the best under the circumstances, and the best under Mrs. McGee's circumstances was to strike down the prohibition on importation so that she could at least get from abroad—albeit without any controls or proper safeguards—what she could not get within the State. If she can get them within the State, with proper controls and safeguards, I submit it is possible that this unlimited right to import could be looked at again. This might be something which could be considered on Committee Stage.

We have, in relation to the censorship provisions, only removed the reference to the wording "unnatural prevention of conception" and we have left the rest of the sections. The remaining prohibition includes books or periodicals advocating abortion. There is a very difficult argument here. I would submit that, in many ways, it might be better to permit literature on this subject so that people could be protected, could inform themselves on the dangers, could understand the options open to them. Others might say no, it is better to prohibit literature about abortion entirely. In other words, they would leave the law as it stands. Then there is the third position: that very often responsible books and periodicals which deal with family planning in the full sense also deal with abortion. I would say there is an argument there which ought to be discussed on the Committee Stage of this Bill, or of any measure to change the law. We, in a sense, have been conservative on this issue and have confined ourselves to amending the censorship laws in so far as they would prevent books and periodicals describing various methods of family planning and the use of various types of contraceptives.

I am trying to make it clear that if this Bill receives a Second Reading from the Seanad and goes on to Committee Stage it is open to the Seanad to bring in amendments. It is open to Senators to vary the types of controls which have been introduced in the Bill or to introduce new controls.

My final point is to dispute the logic of the amendment which the Leader of the House will move. He will move an amendment that the Seanad does not give a Second Reading to this Bill. But if he considers the necessity for a Bill on family planning—and I hope that as a lawyer he will have followed the arguments I have made about the unsatisfactory nature of the present law and that he will agree on the necessity for a Bill on family planning to regulate the existing position and to introduce controls—I submit that his motion is not logical. Why refuse a Second Reading to a Bill which can be amended on Committee Stage, which can be restricted, which can have controls built into it? This Bill is broad enough to be changed quite dramatically in the course of its passage through the Houses of the Oireachtas.

I would submit that the viewpoint which I think Senator O'Higgins represents—and which he will have the opportunity to speak on—is that of those who are most concerned about the dangers to this country of changes in the law relating to family planning. These people should be those who are primarily concerned about the existing law and about the need for regulation if we are to prevent abuse; if we are to prevent the flooding of this country by mail order firms; if we are to prevent the importation by people on a large scale of contraceptives from outside without really knowing or being able to inform themselves on the dangers of these contraceptives.

That very group of people who, in good faith, are rightly concerned about this whole question of family planning, should be those who are most anxiously promoting legislation. Because we cannot abdicate our responsibility. This is not a matter on which we can—as I said last night— either play party politics or delay indefinitely in introducing a Bill and then fail to secure a majority. It is a matter on which we must legislate in the public interest and one in which we have a clear duty to act. Therefore, although I certainly do not dispute Senator O'Higgins's right or the right of any Senator to put down a motion, I do dispute the logic of that motion. I would ask the House to give a Second Reading to this Bill and to pass it into the law of the land.

Mr. M.J. O'Higgins

I move the following amendment:

To delete all of the words after the word "That" and substitute the following:

"(a) Acknowledging the ultimate right of the people to decide all questions of national policy according to the requirements of the common good;

(b) Considering it desirable that the people be consulted as to the enactment or otherwise of legislation which would, or might reasonably be expected to, affect seriously and adversely the quality of life in the State;

(c) Conscious of the widespread view that legislation permitting the advertising and sale of artificial contraceptives and the advertising, sale and distribution of publications advocating the unnatural prevention of conception would, in fact, seriously and adversely affect the quality of life in the State;

(d) Recognising that the proposals contained in the Family Planning Bill, 1973, if enacted, would permit the advertising and sale of artificial contraceptives and the advertising, sale and distribution of publications advocating the unnatural prevention of conception and having regard to the fact that such proposals have not been submitted to a decision of the people,

Seanad Éireann declines to give a Second Reading to the Family Planning Bill, 1973."

Perhaps I should make it clear at the outset, if it is necessary to make it clear, that in tabling and moving this amendment I am acting in my capacity as an individual Senator and not either as Leader of the House or leader of any party in this House. I would have thought that I had emphasised in a very marked way the distinction between these two roles on the occasion of the First Reading of this Bill by my decision not to act as Leader of the House in ordering the business on that day when I was quite determined, as an individual Senator, to oppose one of the items so ordered. That particular nuance of my action seems to have escaped the notice of some of the media scribes who chose to regard it in a different light. For that reason, possibly, it is necessary for me to emphasise the individual nature of my action in relation to putting down this motion.

There is something that should also be said at the outset, that is, that quite apart from the content of Senator Robinson's Bill and the content of my motion, there is another significant difference between them which should not be lost to this House as parliamentarians. The Bill, when it was tabled and indeed when it secured a First Reading in this House, was constructed and designed and brought before this House before the Supreme Court had given a decision on the McGee case. This Bill, part of which deliberately invited the Legislature to allow the importation of contraceptives, was designed and constructed and brought before this House before the question was decided in the Supreme Court. Consequently I do not think one is standing on firm ground to argue that one of the functions of this Bill is to regulate and regularise the position as a result of the Supreme Court decision because one of the purposes of this Bill was to bring about exactly the situation that has been brought about by the Supreme Court decision in so far as the importation of contraceptives is concerned.

There is nothing whatever in this Bill regarding the control of the importation of contraceptives. With hindsight, as a result of the Supreme Court decision, it is of course open to Senators who support this Bill to say that it is necessary for the purpose of regulating or regularising the position because of the door having been thrown open by the Supreme Court decision. This Bill came first and sought the removal of the restriction on imports. It did not seek to control imports in any way. There is nothing in the Bill regarding the control of imports. The position under the Bill is that imports—if we had no regard to the Supreme Court decision and if this Bill were carried —would be allowed without control. The controls would come later when another amendment would be made. In addition to allowing imports we would also allow sales. At that stage it was suggested that there should be controls. As a result of the Supreme Court decision the position at the moment is that imports are allowed but sales are not.

We should get these things clear. The significant difference is that my motion, which was seconded by Senator Quinlan and supported by Senator Quinlan and Senator Andy O'Brien, was constructed, designed and tabled following the Supreme Court decision. Its purpose was to direct the attention of the Seanad and the public to the consequences of the Supreme Court decision, to the general question of the common good and to the constitutional right of the ordinary people of this country.

Mrs. Robinson

How would the people give that decision?

Mr. M.J. O'Higgins

Let us come to that. It is written into the Constitution that ultimately the right is theirs. We have no mandate to arrogate to ourselves that right. It does not rest with four judges of the Supreme Court to decide what constitutes the common good. It is open to the courts to decide whether the particular instance is an infringement of the right guaranteed under the Constitution. I think these things should be said at the outset. That was the sequence of events as regards the Bill, the Supreme Court judgment and the tabling of this Second Reading amendment.

Personally, I would regard the test in relation to a Government measure or any other measure as being whether or not it would improve or disimprove the position which has been brought about as a result of the Supreme Court decision and having regard generally to the common good. My remarks in this debate are governed by that general statement of my viewpoint. I have no hesitation in seconding the appeal by Senator Mary Robinson that we should endeavour to approach this discussion in a compassionate way. It has become increasingly clear that it is very difficult to obtain dispassionate consideration of the question of contraception. There is a strong emotional factor involved. Many people will be aware of cases of individual hardship, some of particularly tragic circumstances and those may incline some of us to judge the entire matter on a purely emotional basis. This Bill does bring about a confrontation between two opposing viewpoints. While I adhere to the view expressed on the First Reading discussion that this Bill is not sanctioned by public demand, I do appreciate that there are strong views in support of it. Strong views are held in opposition to it also; many of those I share and I will endeavour to express them.

Those who propose this Bill are sadly mistaken but I readily accept their sincerity. I would not question either their sincerity or their motives. My views on the subject are expressed broadly in the amendment which I am moving. Since we are going into the detailed and specific arguments in connection with the Bill itself I would like, notwithstanding the difficulties of definition, to say something about the common good and about the quality of life, both of which are referred to in the amendment. To a large extent these two matters are very much intertwined.

Mrs. Robinson

Might I ask the Senator to read his amendment into the record or else what he is saying to it will be somewhat confusing for someone reading the record.

Mr. M.J. O'Higgins

The Senator may leave it to me to make my own speech in my own way. If the Senator had as much experience as I have had in the House she would be aware of the fact that the amendment will appear in the record as having been moved by me.

Mrs. Robinson

I apologise to the Senator.

Mr. M.J. O'Higgins

I do not know whether it is an indication of moral cowardice on my part but I do not find it easy to discuss matters of religion or morals in public. But, however embarrassing it may be for me or for those who have to listen to me, there are times when to be silent is to betray one's beliefs. This may be one of those occasions.

I want to state my views in relation to the common good and in relation to some of the arguments that have been used already in this discussion and have been used previously, based on freedom of conscience. I want to state my views with regard to the position and the duty, if you like, of legislators, with regard to the various what have been described as denominational interests.

We live in a State in which probably there are atheists and agnostics but in which demonstrably the vast majority of the people believe in God, and they believe in God as the almighty God and Creator. I think it is also demonstrably true that the vast majority of Christians in this State who believe that Christ is God are Catholics in belief and in practice and accept the teaching of the Catholic Church. These are facts. Some people may not like them, but no one can deny that they are facts known to all of us.

I want to assert that the chief aim of the State is to realise the common good. The common good is not something mysterious. It is not something that is arbitrarily fixed either by the Legislature or by the judicial authority. It is something that is determined by the rational consensus of the people in the State. I want to assert also that part of the common good will be the moral good of the State. In the Preamble to our Constitution we acknowledge that all authority comes from God and we go on to declare the intention of the State to seek to promote the common good. In Article 6 of the Constitution we declare that all powers of Government, legislative, executive and judicial, derive under God, from the people and we lay it down in our Constitution that it is the right of the people in final appeal to decide all questions of national policy according to the requirements of the common good.

I want to suggest to this House that, even on the basis of regarding the common good in a purely materialistic sense, at a purely materialistic level, that is, divorcing it—if you can do so, and I do not believe you could— entirely from spiritual or moral values, even on the basis, I think that it can be shown that the Bill is undesirable in the terms of the common good, but in a predominantly Catholic State—and like it or not this is a predominantly Catholic State—the common good will not be divorced from moral values; the common moral good will form an integral and I think the most important part of the general common good.

Mr. Yeats

Other people have moral values, too.

Mr. M.J. O'Higgins

That is so. However. I am not going to be deflected on an important subject by interruptions even from a person of such eminence in this House—and I do not say that sardonically—as Senator Yeats. The Government and Legislature derive their power from the people. Again I want to say that and to emphasise it, and I say it quite sincerely and with full belief, that the Government and the Legislature which derive their power from the people are not only entitled but are bound to protect by their laws the moral rights of the people in the matter of the common good. Laws are made for the people as a whole, not for individuals. It is true, of course, that from time to time laws will be enacted dealing with individuals or groups, and there is obviously nothing wrong with that so long as those laws do not conflict with the common good.

Moreover I think it is fair to balance what I am saying and to say this, that I can quite appreciate that a law which is for the good of the people as a whole and from that point of view is of itself good, may have the effect—if you like the side effect—of affecting the rights of individuals or the rights of groups or the rights of minorities. When we are discussing this topic we have to distinguish between the direct and intentional effects of the law and its indirect effects between what is the direct object of the laws or of the particular law which we pass and an indirect object or result.

I want to be fair again, in balancing what I am saying, by conceding this: that a law designed to protect and to sustain a public standard of morality, sanctioned by the consensus view which determines the common good, may obviously have an indirect effect on the private morality of an individual or of a group. It could therefore quite well be that a law which of itself upholds a particular standard of public morality also accidentally has the effect in a particular case, maybe in a number of cases, of affecting private morality in the sense of causing an individual or individuals to accept a standard of private morality which they would not otherwise be prepared to accept and which they feel free in conscience not to accept. I do concede that that position can arise, and I think that position has arisen in this country.

The point of view I take and want to emphasise is that I do not think it constitutes a defect in the law. If it could be shown that the law in question was not directed to the common good, then the position obviously would be different. I take the view— and I think I express the views of many people in this country in saying this—that the law regarding the sale of contraceptives and advertising for sale of contraceptives is clearly concerned with public morality as part of the common good. The consensus opinion which establishes and determines the common good in this State, like it or not, happens to be a Catholic majority, and that is a fact to which the Legislature must have regard to.

It is the essence of democracy that regard should be had to that fact by this Legislature. The mandate which this Parliament has received is a mandate from our people which, like it or not, is 90 per cent or more Catholic. We have not received any mandate to legislate on legal principles which would be offensive or unacceptable to majority opinion in this country which happens to be Catholic. In an atheistic State or society other principles might be acceptable. In a Moslem or Hindu State different principles again might be appropriate. In a Protestant State yet other principles might be deemed to be the acceptable and the appropriate ones, but in a State which is predominantly Catholic the consensus determining the common good will be and must be based not only on the natural law but on the positive law of God.

Dr. Browne

Basil Brooke had the same view about a Protestant State.

Mr. McCartin

We can see now where the intolerance comes from.

Mr. M.J. O'Higgins

The question of contraceptives involves a number of things. It involves the relations between husband and wife and involves the question of children. It involves society, because, whatever view one takes, it is generally accepted that the family unit is basic to society.

For those who believe in God as Creator it also involves the relations between man and his Creator. It is essentially a question about the natural laws—laws which are part of the nature of man, laws which are binding on man as a human being regardless of his creed. Regarding the common good, as indeed we must regard it, as being determined by the rational consensus of the people in the State. I think the quality of life in the State follows logically from that. I do not care whether people like this or not. I think it has to be said that the quality of life in the State will be largely formed and moulded from the Catholic ethos, to use the word which is becoming popular nowadays.

It happens that the Ireland of 1974 has a heritage of Catholic faith defended in the past, preserved throughout the years, strengthened by trial and handed down to this Irish generation. Of course there may be glaring failures in parts of our national life. There may be black sheep of the very blackest amongst us. Some of us may fail lamentably to live up to what is expected of us. I do not think that affects in any way the general proposition that I have made. We know that there is a moral quality to Irish life, that there are moral standards and values, that there is a concept of natural morality, that there is respect for personal dignity and integrity, that there is a regard for the institution and the sacrament of marriage and for marital fidelity which few if any of us would want to see jettisoned. These are the kind of things which go to make up the quality of Irish life. These are the kind of things I for one do not want to see sacrificed or even put at risk.

This Bill, if enacted, would permit the advertising and sale of contraceptives. It would permit the advertising, sale and distribution of publications which advocate the unnatural prevention of conception. Of course, it is open to the Legislature to make these changes. There is no legal or constitutional barrier to doing so. I think that to argue—I do not say that Senator Robinson has argued in this way—that all we are concerned with in a Bill like this is a kind of tidying up operation, would be oversimplifying the position and looking on this matter in a purely legalistic sense. We are concerned here on this Bill with far more than narrow legalism. We are concerned with far more than individual rights. We are concerned with the general question of right and wrong and with the question of the common good. Various arguments have been made from time to time in favour of changing the laws. Once again let me emphasise that I accept without question in so far as the proposers of this Bill are concerned—this extends to very many who have spoken outside the House on this Bill as well, although not necessarily to all—that the arguments are advanced sincerely and from deeply held convictions.

The kind of arguments that are made—some of them were made by Senator Robinson today—is that the right to use contraceptives is a basic civil right and that the State has no right to interfere or legislate in the field of private morality; the law as it stands is a law which upholds the moral teaching of one church and therefore it discriminates against the other churches; if we do not change the law it is going to have an adverse effect on North-South relations as providing evidence that for us Home Rule is Rome rule. There is a general question of discriminating against minorities who in conscience feel free to use contraceptives. They feel, as far as their conscience is concerned, that they are free and entitled to use them.

For many people the argument which is urged possibly most forceably and which indeed makes the greatest impact is the one based on the hard cases: the case of individual hardship where tragic human circumstances exist. There is also the argument used—and I know this argument is one which causes serious concern to a number of people who otherwise would have no doubt as to their attitude with regard to this matter—that the legislation concerning contraceptives is part of the criminal law. As it is emotively put at times, the law as it stands makes criminals of those who use contraceptives.

I want to deal fairly briefly with a number of these arguments. I should like to take the last one first, because I know it is a point which seriously troubles some who would otherwise be quite clear in their minds as regards their attitude on the matter. My personal view is that the emphasis on the criminal rather than the civil side of the law on this matter is a bit emotive. Sometimes it is deliberately urged because of the fact that it is emotive. On the other hand, I do know that a number of people are genuinely and seriously concerned and troubled. People who feel that way probably do feel that my attitude —this was put to me by one of them —is perhaps too dismissive. Maybe it is. I can only state my attitude and my view on it. There are other things to be said as well.

The first thing to bear in mind is that the law as it stands does not prohibit the use of contraceptives, and it never has. It is misleading and emotive to put the argument on the basis that the law as it stands makes criminals of those who use contraceptives. It does not. The law deals with the importing, sale and advertising of contraceptives as it stood prior to the Supreme Court decision. It now deals with the sale and advertising of contraceptives. It surprises me that, if people were seriously concerned about the matter being dealt with on the criminal side of the law rather than the civil side of the law, it should take nearly 40 years for that concern to come to the surface.

I know that people who advocate a change in the law regarding contraception very much resent the question being tied in in any way with abortion. In relation to those who feel concerned about the fact that this matter is dealt with on the criminal side of the law rather than on the civil side, I feel certain that most of those would also feel that abortion should be dealt with under the criminal law. I wonder are they satisfied when they suggest that the matter of contraception should be entirely removed from the criminal law. Are they satisfied that, in all respects and at all times in regard to all devices which would be used for contraceptive purposes and which would be permitted to be used under the terms of this Bill, none of them is, in fact, abortifacient.

In any event I want to say, without attempting to downgrade the argument that is based on the criminal law, that if a person is troubled about the fact that the law as regards contraceptives is in the criminal law code rather than the civil law code, they do not alter that one bit by lending their support to this particular Bill. This Bill still leaves the subject—and this was conceded by the proposer of it— within the criminal law code. It is right to say those things. I do not say them for the purpose of downgrading the people who make that argument and who are seriously concerned about it.

One of the other categories of arguments—I propose to shorten things by grouping a number of the arguments together—that effect people particularly the person who is generous and compassionate in his outlook or her outlook, are the arguments that are based on cases of individual hardship. It may seem callous to refer to the saying that hard cases make bad law. Experience down the centuries has shown that that saying is a very valid one. Even though that may be so, I know well that there are cases of tragic human circumstances in particular families and in particular cases from time to time. I know that it is difficult to argue about these cases without appearing to be hard-hearted and callous.

There are cases of large families who are badly off and badly housed. There are cases where there is genuine fear of death resulting from a further pregnancy. There are the cases also where support is urged for change based on civil rights, human rights, or discrimination against a minority. I want to say in relation to this type of argument that I am not in any way questioning the strength of sincerity or the depth of feeling of those who advance it. If we as legislators were entitled to look on these cases in isolation and to judge them simply on human or humanitarian grounds without any regard to moral values or beliefs without any regard to natural law, without any regard to the general common good, and without any regard to the possible consequences for the society as a whole, as far as I am concerned the emotional appeal would be difficult to resist in such cases of genuine personal hardship.

Similarly, if one chooses to disregard what I look upon as the paramount importance of the common good and if one opts to disregard the interest of the majority and their views and their values, then arguments based on claims to individual or minority rights can, of course, assume dimensions which otherwise they would not have.

It is hard to resist appeals made on grounds of individual hardship. It is invidious to appear to ignore pleas conscientiously advanced by minorities. It is even more invidious to be portrayed thereby in the role of a bigot. I want to put this seriously to my colleagues in this House. Should we not recognise that it is precisely on such grounds of human suffering and conscientious freedom that the case will be argued for further extensions, which will be called advances, on a so-called liberal, progressive front? Is it not precisely on such grounds that claims for legislation for the legalising of abortion and mercy-killing will be argued? If one supports a measure of this sort on the grounds of civil rights, minority rights or on the grounds of particular circumstances causing individual hardship, how can one at a later stage logically argue against other measures—no matter how obnoxious to public feeling, objectionable to public morality or erosive of the common good—which are advanced on similar grounds?

I suggest that the arguments based on freedom of conscience must be seen in the context of the common good. I think that if they are placed in that perspective they may perhaps be seen not to be as strong as their advocates supposed. Possibly different people mean different things when they talk about conscience. Without getting into arguments about definitions or about the basic conditions for an informed or an instructed conscience, I think it will be accepted that it is not sufficient in order to establish a right merely to proclaim, no matter how honestly or sincerely the proclamation is made, that in adopting the course for which the right is claimed one is following one's conscience. Surely every moral decision involves a matter of conscience. This is so whether the matter in question is the use of contraceptives, a decision to steal, to murder or to perjure onself.

I think it is not unfair to ask those —I want to make it clear that I do it without belittling their arguments— or attempting to jibe—who feel that the law should be changed in order to recognise and uphold what is claimed on conscientious grounds to be a right to prevent the conception of life by artificial means, whether they are prepared to have similar legal protection and accommodation afforded to people who also on conscientious grounds claim a right to take life? This question is not academic. It is fundamental, real and present in the Ireland of today. What is the difference in principle if both claims are advanced on conscientious grounds? One claims the right to prevent conception by artificial means; the other claims the right to end life —for example, by bombing the North into a united Ireland. If both claims are honestly advanced on conscientious grounds, is there any difference in principle—and I emphasise, in principle—between the legal treatment which they should receive?

If that question is examined in depth it will be agreed that a great deal more should be required than the fact that the claim is staked on conscientious grounds. I want to suggest that, even apart from the universality of the natural law and even apart from the case, which I believe to be true, that neither majorities nor minorities possess a "right" to violate natural law. If one accepts the concept of the common good, as we do specifically in our Constitution, it follows inevitably that there will be occasions when the interests of individuals and of minorities will have to be subordinated to the common good. It is probally true that in all countries minorities suffer disabilities and restrictions precisely because they are minorities, and because their views, however conscientiously they are held, are in fact minority views and have not gained general acceptance.

For example, is it likely that here or in England or in America that laws would be enacted to legalise bigamy or polygamy, although that is a right that could be claimed as a right on religious grounds. It is absolutely true that even actual and recognised rights may at times be restricted and suppressed by the State, having regard to the higher rights of common good. Consequently, instead of being illogical, as is suggested, I want to suggest that there is nothing inconsistent in desiring to respect the wishes of minorities as far as possible, and at the same time declining to tailor our legislation to meet their wishes or suit their convenience, if we take the view that to do that would conflict with the interests of the common good. That is not suggesting that minorities has not got rights, or that they have not got moral values which are treasured very deeply by them.

The question of public and private morality has been raised and obviously is of very great relevance to this discussion. Of course it is true, in my view, and is generally accepted I believe, that the State has no competence to legislate in the field of private morality and that it cannot legislate for the realm of private morality. However, the State can legislate in the realm of public morality, and it should legislate in the relam of public morality for the common good.

There is no argument about the fact that the use of contraceptives is a matter of private morality. As I have pointed out already, the State has not legislated as regards the use by individuals of contraceptives. To make contraceptives available publicly, particularly if it is suggested— and I understand that this suggestion is implicit in some of the arguments in favour of this Bill—that they should become part and parcel of the health services, then that is a matter of public morality. The State has legislated in that area. The direct object of the law now in question is the sale and advertising of contraceptives. This is in the realm of public morality.

I should like to say a few words about the North-South relations argument; that is the "Home Rule—Rome Rule" argument. I am quite sure that it is not intentional but it does appear that this type of argument is grossly insulting to the people of the North. Are they any more likely to throw aside their traditions for a load of contraceptives than we are? Again, while I am sure it is quite unintentional, it does appear that the argument about North-South relations smacks of a subtle type of blackmailing "souperism" that I think is insulting to the people of the South. There are values, standards and religious beliefs that the people of the South are not going to sacrifice at any price nor for any political reward. We are misleading ourselves and our fellow-countrymen in the North if we do not say that. We might not like saying it, but it is a fact, and is one of the facts of life that have got to be faced-up to in this country, North and South. When people talk of Home Rule or Rome Rule, Home Rule or Rome Rule being the test in this Bill, does it occur to them at all that for many people the test is going to be seen as one between conscientious conviction on the one hand and political expediency on the other?

What about the rights of those who conscientiously object to contraceptives on the basis that they are morally wrong and against divine law? Are their rights to be ignored by this Assembly? Are they to be forced to contribute in rates and taxation to the supply of contraceptives through dispensaries and through the health service? Have they not got rights as well? Have they not got conscientious rights which are as much entitled to be considered as the rights of minorities? I want to respect the rights of minorities in so far as I can, provided they do not conflict with the common good. People may choose to laugh at that sentiment, but it is a sincere one.

I believe that to amend the law by acceptance of this Bill in any event would be damaging and contrary to the interests of the country. It is entirely wrong, although I accept it is not intentionally so, that this Bill should be entitled a Family Planning Bill. I accept and am certain that there was no intentional dishonesty on the part of the proposers in so entitling it. However, they did fall victims to the type of propaganda that abounds in connection with this subject. This Bill deals with making contraceptives available. It is a Bill dealing with contraceptives. To call it a Family Planning Bill has the effect of equating family planning with contraceptives to the exclusion of natural methods of family planning.

The provisions of this Bill, if implemented, might bring relief in some cases of individual hardship and might remove an inconvenience in other cases. That might be done at the risk of considerable injury to the moral fabric of this State. If we can contemplate with complacency the enactment of legislation like this we must contemplate, too, opening the door to far more than is intended by the sponsors or supporters of this Bill.

It is no reflection on the Irish people to say that what has happened elsewhere can happen here. I am not going to delay the House very much longer. I am not going to bore the House with too many quotations but there are some matters we are entitled to look at in the context of the ploy that is often used by those who favour this kind of change and who say: "Are you suggesting that the Irish people are so weak that they will not be able to stand up if the floodgates are opened?". They say: "What has happened in England? What has happened in the North? Are you suggesting that the people of the North of Ireland or the people of England have allowed the moral fabric of the State to be shaken because they allowed contraceptives to be used, because they allowed legalised abortion and one thing or another?"

We should have a look at what has happened elsewhere. I have here a quotation from The Irish Times of 13th April, 1971, under the heading “Birth Control Campaign in Britain”. It reads:

A powerfully backed political pressure group seeking more birth control facilities on the national health services is being launched in Britain next week...

They go on to set out the aims of the birth control campaign which aims at the provision of adequate facilities for contraception, voluntary sterilisation and therapeutic abortion on the national health service. The very next month The Irish Independent of 24th May, 1971, had a short report under the heading “Pornography Tidal Wave—Bishop”. It said that a tidal wave of obscenity and pornography was sweeping through Britain, a leading Church of England bishop had warned. It said that it threatened pollution of all moral standards on a scale which should cause as much anxiety as any physical threats to the environment.

An Evening Herald article on 5th December, 1973, was headed: “Sex Devices put Youth at Risk” and referred to appeals being made to made to Britain's Social Service Minister to clamp down on the indiscriminate supply of contraceptives to teenagers. It referred to the irresponsible sales campaign disguised as medical advice which continued to encourage experimentation provided contraceptives are bought beforehand, and so on. Could it happen in the North? Has it happened in the North? I have here the Belfast News Letter of Tuesday, 5th February, 1974, which states: “Permissiveness Is New Threat To Ulster Society”. It starts by saying:

Permissiveness is growing in Northern Ireland at an alarming rate. In fact, the drift in our moral standards is so great that it now threatens the very fabric of society. This warning is contained in a shock report published today——

that was the fifth of this month

——by the Armagh Diocesan Board of Social Responsibility.

In the course of this Article it says:

Through all the modern media of communications hitherto accepted concepts and standards are questioned and the impression is given that doctrine is of no importance. Vague liberalism is offered as a substitute for Christianity.

Of course, the pressure is now on here. The Sunday Independent of 6th January, 1974, published an article on page 3 under the heading “Drug Firms Ready to Move In”. This article started by saying:

Major drug companies throughout Europe are poised for a fullscale marketing compaign of all forms of contraceptives in the Republic within the next few months.

In The Sunday Independent of 3rd February, 1974, on page 1, we read: “Contraceptives—Big Mail Order List”. It refers to the fact—and some of us have seen the result of this— that thousands of mail order forms for contraceptives are to be put into Dublin homes. Squads of women in Dublin are reported to have been hired, through newspaper advertisements, to distribute order forms in plain brown paper envelopes. All this is merely following a decision of the Supreme Court to lift the embargo on importing contraceptives.

Those who are urging that the door be opened further are not at all satisfied with this Bill which has been produced by Senator Robinson. It is condemned as being too conservative. It does not allow slot machines. It is too conservative. I have been nearly 30 years in public life and I am fairly well immune to either attacks or flattery from the media. I do not resent the type of attack that has been made on the viewpoint I am expressing. Most of the things that have been said or written cause me no concern at all. I refer to a sub-leader which appeared in The Sunday Independent on 27th January, 1974. It is not for self-justification that I refer to it but because I resent the type of attack which has been made by an anonymous leader writer, not because it concerns me but it affects Senator Andy O'Brien and Senator Quinlan who have put their names conscientiously to the amendment. This article, under the caption “Whose Lives?” states:

The Leader of the Senate and two other Senators have put down a motion asking that a Second Reading be refused to the Family Planning Bill. One of the amendments says that the Bill "might reasonably be expected to alter seriously and adversely the quality of life in the State". One of our "qualities of life" is the mass impregnation of women whose lack of health and wealth make them least qualified to tolerate this moral indulgence. In a referendum this segment would probably be outnumbered by those who have no such burden to bear and who, like the three Senators, can afford to wag censorious fingers at everyone other than themselves. The motion should be treated with the contempt it deserves.

This shows the type of scurrility and venom which this subject engenders particularly when the poison pen is wielded in the sheltered anonymity of the editorial columns of a newspaper. I am entitled to comment on it and to make some points with regard to this brave know-all who writes in the secret shelter of those newspaper columns without having to sign his name.

The text of the amendment was not given. A portion of one section of the amendment was quoted and on the basis of that there was an assertion made which I assume was possibly more through ignorance than malice. One would imagine, however, that leader writer in a newspaper would at least have the nous to read the amendment he was talking about. There was not a question of more than one—he refers to one of the amendments. There was only one. It asserts the amendment as saying what is quoted. In fact it did not do any such thing. It called for acknowledgment by this House of a widespread view. I am sure nobody would deny the existence of that widespread view. The hysterical screeching in this article about mass impregnation of women is in terms which seem to me to advocate the use of contraceptives recklessly without any regard as to whether they might be abortifacient in character. The reference to a referendum seems to show contempt for the democratic process in this country. This anonymous hero has the audacity to ask "Whose lives?" Apparently it never occurred to him that the answer might be the lives of innocent, unborn children.

There is no doubt of the possible gravity of the possible consequences. I do not resent the views of the Church of Ireland committee or the Presbyterian Church being expressed or going on the record of this House. I do not resent the fact that they approached me and every other Senator. They were quite entitled to do so, and I do not and I did not raise the cry of church interference which has been raised so often when the voice of the majority church in this country was heard. It is right to put into the records of this House the appeal made by His Holiness the Pope to rulers, to legislators, to people such as ourselves, on this subject. In Humanae Vitae he stated:

And so we would like to speak to rulers of nations because to them most of all is committed the responsibility of safeguarding the common good and they can contribute so much to the preservation of morals. Do not ever allow the morals of your people to be undermined. Do not tolerate any legislation which would introduce into the family, practices which are opposed to the natural and divine law. For the family is the primary unit of the State, for there are other ways by which a Government can and should solve the population problems. That is to say, by enacting laws which will assist families and by educating the people wisely so that the moral law and the freedom of the citizen are both safeguarded.

If we decide to support this Bill we will be lauded by the media. We will be hailed by the drug companies who are poised for the take-over. We will be praised by all those who have vested interests. We will be lionised by those whose desire it is to knock the teachings of the Catholic Church and to knock the Hierarchy of the Catholic Church. Yes, if we support this Bill we will be showered with bouquets. We will bask in praise. But we may have taken a first irrevocable step to damage irreparably the true interests of this State.

If we oppose this Bill we will be ridiculed, attacked and scorned. We will be abused by some but we will have the satisfaction of knowing that we were true to our heritage. The choice is ours. The responsibility rests on each of us as an individual. At this time in this place on this Bill we have got to make that choice.

Professor Quinlan

I have great pleasure in seconding the amendment standing in Senator O'Higgins's name. The amendment restates principles that I expect the overwhelming majority of the Seanad, the overwhelming majority of Dáil Éireann and the overwhelming majority of the Irish people readily assent to because they are the essentials of any approach to democracy—in other words, acknowledging the ultimate right of the Irish people to decide all questions of national policy according to the requirements of the common good. Is that not what democracy means?

We go on to show that we are conscious of the need for the people to be consulted as to the enactment or otherwise of legislation which would or might reasonably be expected to affect seriously and adversely the quality of life in Ireland. Surely the people are entitled to that. How the consultation can be done is another matter. I take it that individual Deputies and Senators are already engaged very actively in making these consultations and in getting the views up from the country and that they realise, as Senator O'Higgins has outlined, there are many valuable things in our national life here that we will not barter for any united Ireland.

Let us be straight about it. We could have had a united country many times in the past if we were prepared to accept totally the British way of life. That was offered several times. It was there for the asking. Is it that the present generation are more ready to barter their heritage than any of our previous generations? I think we have a glorious history and I do not for one moment go along with attempts to rewrite our history to try to make out that 1916 was a failure or that it was a mistaken effort. It was an absolutely necessary attempt in our development to nationhood just as the subsequent realisation that the proper continuation of that development was by the democratic process.

The 1916 rising was overwhelmingly endorsed in 1918 in the national elections; an endorsement such as was never given before or since to any group. It was from that that our freedom flowed, and let nobody for one moment denigrate the efforts and the sacrifices that went into establishing this State, a State that is basically, as expressed so well in our Constitution, a Christian State.

To my mind, the present coming together of churches, the ecumenical movement, is highly laudable, highly desirable, but it is from our common Christian heritage that we should advance together, and face up to the challenge of the very tiny minority of so-called humanists or liberals in our society whose one main plank seems to be that they would deny the rights of anyone to oppose their views. In other words, it is their type of perverted infallibility which has led the world to where it stands today.

We have got to take a stand on these issues. In saying that—I do not for one moment take the sponsors of this Bill as being motivated by these perverted ideas—I want to emphasise that these are the basic facts. It was suggested by Senator Robinson that the Bill could have been amended and that it was necessary to have some type of Bill and that we could amend it in the Seanad and that, therefore we were being stupid or foolish in opposing the giving of a Second Reading.

As Senator O'Higgins said—he has been in the House a long time and I have been here a long time—if Senator Robinson had been as long here as we have she would realise that there are certain parts of a Bill that has passed Second Stage that cannot be amended. In other words, the basic principle of the Bill cannot be amended in Committee Stage. To my mind, the basic principle of the Bill before us is the availability of contraceptives to all, whether married or unmarried. If the Second Stage is passed, if that principle is agreed to, that principle cannot be amended on Committee Stage. I am totally opposed to that principle and, therefore, I am opposed to the Second Reading.

I endorse everything Senator O'Higgins has said. He said it far better than I could have said it, in both his legal approach and his whole national approach to the problem. Therefore, I will not detain the House by travelling along, or reiterating, what Senator O'Higgins has so ably said. That has gone into the record and I simply say that I endorse it wholeheartedly. I think it is a statement that will be read again and again by future generations who will examine the proceedings here and the statements on the record.

I wish now to turn to some other facets of the problem. First of all, I recognise that since the Bill was introduced changes have taken place due to the Supreme Court decision and this has opened the floodgates to all this deplorable mail order business. The decision yesterday has highlighted the scandalous facts that minors of 9 to 10 years can be supplied with all forms of contraceptives from centres in Dublin. These are facts and these are happenings that nobody can condone or support. Therefore, there is a very positive duty on the Government to move swiftly and quickly to deal with those threats before they really assume major proportions.

I suggest that it is the business of the Government, first of all, to deal with those. I am not very happy about the Supreme Court decision as yet because it conflicts with Article 34.5 of our Constitution where it was laid down that:

The decision of the Supreme Court on a question as to the validity of a law, having regard to the provisions of this Constitution shall be pronounced by such one of the judges of that Court as that Court shall direct, and no other opinion on such question, whether assenting or dissenting, shall be pronounced nor shall the existence of any such other opinion be disclosed.

That to my my mind seems clearly to say that the Supreme Court judgment was itself unconstitutional. It is an extraordinary position. No provision has been made for this—when the Supreme Court in interpreting the constitutionality of an Act, itself acts unconstitutionally. It is surely a matter for the Government to look into this.

I am aware that a statement was issued from the Supreme Court, where I believe there was great consternation and scurrying to and fro when Article 34, section 5 was pointed out. The explanation given was that the Act in question was one passed prior to the passage of the 1937 Constitution. I cannot find anywhere in the Constitution any statement that Acts passed before the coming into operation of the 1937 Constitution had any inferior standing to the Acts that were passed after that. I interpret this section to mean that where there is a division of opinion on the question, the benefit had to be given to the Act in question unless the minority in the Supreme Court waived their right and accepted the majority's viewpoint on it and concurred in nominating one of the majority to deliver the judgment.

However I think it was very instructive that we got all five opinions in that case. The opinions, especially the majority opinions, were very circumscribed and pointed out very clearly that they were only concerned that this in their view was a right that should be available only to someone within marriage. It was tied very tightly to that. I am glad for that reason that the Supreme Court acted unconstitutionally in publishing those opinions. I think it is a matter for the Government——

An Cathaoirleach

I should like to indicate to the Senator that I think the suggestion that the Supreme Court were acting in any unconstitutional or any improper manner should not be made. The Supreme Court carried out their duties in their customary way and they should not be subject to criticism in the House.

Professor Quinlan

I posed the question whether what they did was in accordance with Article 34, section 5 of the Constitution.

An Cathaoirleach

That is a question which should not have been posed in the House.

Professor Quinlan

I accept your ruling. We must be able to pose that question somewhere, somehow, and we must be able to get a satisfactory answer. The people of the country are anxious to have a satisfactory answer. It seems that what is required immediately is a Bill that would prevent the glaring abuses that have developed recently. That can be done quite quickly by the Government.

On the other hand, the whole series of questions opened up by this judgment—the question of the availability of contraceptives, how they will be controlled; the provision of proper aids within family planning—are all very serious matters and their impact in relation to the standards which we believe should prevail here all need very careful consideration. They need to be approached on a non-party, open vote, basis. They need to be approached after serious and prolonged consideration by, I would suggest, a committee of both Houses of the Oireachtas. That committee should follow the usual procedures, of taking submissions and producing a report on the subject. A second Bill could then be introduced on a free vote basis and an effort made to ascertain the views of the people on this, not just those of the rent-a-crowd which we have seen too much of in Dublin in recent times, or of those of the media who have become popes in their own right or those leader writers who apparently know everything.

We are a democratic assembly and the party here that goes against the wishes of the majority in this may survive two years until the next election but the plain people of Ireland, when it comes to the ballot box, have a way of expressing their views too. I am suggesting that we take the problem in two parts. I should like to feel that it is possible to couple with the first Bill an immediate declaration on where we stand in regard to the right to life. It is fundamental that the unborn baby—not this word "foetus" which means nothing—from the moment of its conception has a right to life; that the State, as a Christian State, acknowledges that right to life, and that we write that into our Constitution by a quick referendum—a referendum that would no doubt have the backing of all parties.

We need to take our stand on this matter because this right will be the next that will be in question. Many countries permit abortions and abortifacients. Countries that do not have those so-called enlightened methods have very active groups campaigning for them. Indeed, in the row which I occupy here in the Seanad, my nearest neighbour at the moment, Senator Browne, has gone on record on television to say that he favours the introduction of therapeutic abortion. He said it here in Seanad Éireann quite recently. We need only look at the opinions of those pressure groups howling outside and we find that some have demanded it and others are just waiting until this Bill has been passed before moving on to the next phase of their campaign for the "liberalisation" of our Irish life. Their goal is the anglicisation of our Irish way of life and the removal from Irish life of everything that distinguishes it from life in England.

Dr. Browne

It would save Irish girls from having to go to England for abortions.

Professor Quinlan

I want, then, to take up the issues that I think the Oireachtas and the suggested Oireachtas Committee will have to face fairly and squarely. First is the question embodied in the Title to this Bill—the Family Planning Bill. That seems to relate to families, not to contraceptives, as would indeed be its more descriptive title. We have a real need for aid in family planning. We are all aware of it. We have all had problems in our time. All families have the problem today of the spacing of the family and the number in the family. It has always been a problem.

Fortunately, there is now available as an aid a perfectly acceptable and fully reliable method of natural family planning. This is something we have got to look into—the Billings method. It answers the need that the movers of this Bill have advanced for the introduction of aid. This is the aid that offers real help to the 70 or 80 per cent of our people who would not touch anything labelled "an artificial contraceptive".

Dr. Browne

That is forbidden by the Censorship Act.

Debate adjourned.

Business suspended at 1 p.m. and resumed at 2.30 p.m.

Seanad Éireann debate - Thursday, 21 Feb 1974

Family Planning Bill, 1973: Second Stage (Resumed).

Seanad Éireann debate -
Thursday, 21 Feb 1974