Last night I was attempting to assess the significance of the brief intervention made by the Minister for Justice on Report Stage. I am glad to welcome the Minister back in the House for the resumption of the debate. The reason I think it is important to try to assess the significance of the intervention is that the Minister for Justice repeated again what is clearly his grave concern at the inadequacy of the wording of the amendment as it exists. During Committee Stage debate in this House the Minister referred to this question of balancing the rights of the pregnant woman and the foetus, the fertilised ovum or the unborn at whatever stage is being considered, whether it is a possible threat to the pregnant woman and some choice must be made between the woman and the unborn. The passage where the Minister intervened on Committee Stage on this point is in Volume 100, No. 9, column 955. It is worth referring to that passage because it shows the important issue which the Minister raised then and came back to last night on Report Stage. The Minister said:
On the question of balancing the rights of mother and child, there is the right to life of the citizen in the Constitution and obviously that includes mothers as well as other citizens but, again, if we simply had a statement giving a right to life to the unborn child and did not attempt to allow for current medical practice by some form of subsequent or subsidiary phrase, we would be leaving it open to the courts to balance the existing right of the citizen in the Constitution with the new right which we would be giving to the unborn child. Maybe that would be a way of doing it but we would not be establishing a situation where the Supreme Court would not have a major role. We would be saying we will put a right to life of the unborn child into the Constitution, that a right to life of all citizens exists already and that in cases — as at times in current medical practice — where there appears to be a conflict, it would be up to the courts to decide. I felt I needed to make a comment on those points because while what the Senator says is interesting, for those reasons it does not help the situation, and I would not advise an amendment along those lines should go back to the Dáil. I doubt that it would have the prospect of acceptance.
That was the way in which the Minister raised this issue on Committee Stage. Then last night he came back to it in the unusual situation, almost a role reversal as I was saying last night, when he continues, as indeed I do and those other Members who are still participating in this debate do, to ask the question what the risks to pregnant women will be in a situation where the Constitution confers a constitutional right and does so in the language and in the manner of creating an equality of rights and indicates and allows on the face of it no preference to either in case of conflict.
I understand from the intervention of the Minister, on Report Stage, that he is concerned to highlight this grave omission, this grave problem with the existing text. Senator O'Leary on Committee Stage also drew attention to this problem. He asked what he called the sponsors of this amendment, the Fianna Fáil Party, to explain why they would not accept the addition of some formulation to the effect that where there was a definite threat to the life of a pregnant woman that medical steps could be taken and any steps taken would not be unlawful, would not be in breach of a constitutional right and would not be contrary to the Constitution and law of the State. This concern for women and for the risks inherent in this amendment, in so far as it may affect pregnant women, has also been expressed publicly by the Taoiseach. He has drawn attention to this and he says he will make a public statement when the Bill has been passed by both Houses and he will warn of the risk in this amendment to the lives of pregnant women.
The Minister of State with responsibility for women's affairs, in a contribution during the debate in this House, said that she believes this wording is dangerous and she will advise that it be rejected if it goes to a referendum. We have very clear and very concerned statements by the highest political authorities in our system on this issue, the Taoiseach, the Minister for Justice and the Minister of State with responsibility for women's affairs warning us that this text is dangerous to the lives of pregnant women. When I went home last night I reflected further on the matter. It occurs to me that there is a kind of analogy, it is like the Government warning on cigarette packets. It says that cigarette smoking is dangerous for your health. Will there be some Government warning on the ballot paper if this goes to a referendum?
This proposal places at risk the lives of certain pregnant women. The mind boggles. Surely it is in the public interest that we take more time to consider this. Let it go back to the other House and there will be a proper debate on the extent and scope of that risk to pregnant women. Surely it is not a situation, even at this very late stage, where the stance is that of abstaining, because there has been enough talk about this it has to go to the people, it is an uncomfortable political situation, it is the mood that prevails in the Fine Gael Party. It is simply incredible and the deepest insult that I know to women that the Taoiseach, the Minister for Justice and the Minister of State with responsibility for women's affairs would draw attention to the fact that this text is dangerous and poses risks to pregnant women and yet that they would not use every resource of our parliamentary process in order to ensure that further time and consideration was given to the text before it was the one submitted to the people.
On the wording of the text as it stands there is no preference given to pregnant women in a situation where a choice has to be made between the lives in that life threatening situation which occurs. The purpose of this amendment on Report Stage is to give a prior right, which is current medical practice here. That is what the Minister is referring to. In his contribution on Committee Stage the acting leader of the House, Senator O'Leary, invited new thinking. He asked us to come forward with possible alternatives to improve the situation and not simply put forward the amendment which Fine Gael had put forward in the Dáil which had been rejected.
This is the second new thinking on this that has come forward on Report Stage in the House. It is not too late at this stage for the warnings which are given at the highest level by the Taoiseach, the Minister of Justice and the Minister of State with responsibility for women's affairs to be carried through into action, as Senator Bulbulia said. It is part of her philosophy that if she believes in something, if she states it, then her actions follow her words. I thought she said this with great simplicity and great authority in her contribution on Second Stage.
It is not too late to have an influence and to make a constructive contribution in this debate because, as was pointed out yesterday, by Senator Higgins in particular, the medical profession are broadening and deepening their awareness of the difficulties. There were some members of the medical profession who from the very beginning pointed to the difficulties and dangers in this proposed text. The wheels of every establishment structure in Ireland move slowly. It is only now that some very senior members of the medical profession have been alerted, are becoming aware, are writing letters to the papers and are calling meetings to consider the implications. Many of us might say they should have done it a year ago. They should have woken up. They have the expertise. They know the problems and the practical difficulties. Their contribution would have been more helpful if they had intervened at an earlier stage but that is precisely what I understand the balances in our legislative system to be. The whole purpose of having a second run of legislation right through its five Stages in the Upper House — it having passed through the other House — is so that it can act as a means of public information and education so that those who are in a position to make a contribution in the media or in the public forum because they have some expertise — of course the medical profession have — can do so. There is no rush about this. Nobody has been able to put forward any credible reason why we have to dash into setting a date for a referendum.
In view of the very strong disquiet that must be felt by any reasonable citizen when such authoritative voices point to the risks to life implied in this proposed text there is a very direct responsibility and challenge to us in the Seanad to consider the matter carefully. This was something on which I dwelt at considerable length on Second Stage and I do not intend to dwell on it at great length now. It is not too late, the subject is not a boring one, it is about life-death chances in certain instances and about how we effect the change.
The Minister, in his contribution last night, looked across at the Fianna Fáil benches and asked whether, at this late stage, some explanation could be given as to why the sponsors of the constitutional amendment will not accept some formulation to clarify and to avoid this risk to the lives of pregnant women. There was an attempt to answer some of those questions on Committee Stage from the Fianna Fáil benches, particularly in the contribution made by Senator Eoin Ryan. I want to refer to the two brief passages in his contribution where he attempted to meet some of these problems. We are now on Report Stage and, in my submission, the problem is still as acute and difficult as it was and no answer has been provided. We are not reassured at all. On the contrary, I am all the more alarmed that somebody who is as senior in the legal profession as Senator Eoin Ryan can brush aside the difficulties that have been raised and repeated in the contribution by the Minister last night. I refer to the contribution by Senator Eoin Ryan, reported in the Seanad Official Report, Volume 100, No. 9, column 990. He dealt first of all with the scope of the concept of the unborn and then afterwards with the balancing of rights. Both passages are relevant to the amendment we are considering. Senator Eoin Ryan said:
Senator O'Leary raised a second aspect of this which, of course, is a much more substantial one, what does "unborn" mean, at what stage would the child have to be to be "unborn" to be covered by this amendment. That is certainly a very important point but it is so complicated that it would be quite impossible to define it in such a way that no doubt would be left. It would be necessary to put some sort of medical dissertation into the Constitution to deal with this matter, to put the pros and cons and to finally come down. Of course, that is clearly quite impracticable. What has to be done is to put in a word and allow the Supreme Court — if the matter ever arises — to interpret that in the light of medical, moral and legal opinion at the time, to have regard to the climate of public opinion. If the point arises as to exactly what stage the foetus is covered by this then they may have to interpret it. There is nothing wrong with allowing that kind of interpretation to the Supreme Court. That is one of the very useful things the Supreme Court does, to interpret Articles of the Constitution as time goes on, having regard to the climate of public opinion, medical views and developments at a particular time. It is a very proper function for the Supreme Court to define what exactly that means in the light of opinion, legal and other opinion, at a particular time. That is the only way to approach this matter. If we did attempt to put in a medical definition into the Constitution it is quite possible that in a relatively short time further views and opinions would become acceptable which would mean that the definition in the Constitution would no longer be valid.
There are several different ways in which that is a most interesting contribution. First of all, Senator Ryan admits that the text is not clear as to the point at which we are conferring the constitutional right oh the unborn. He says that it may vary from time to time. That is very interesting because, in fact, that could be an indication that if public opinion were in favour of legalised abortion the Supreme Court should interpret the point in time as being a much later one. I have not seen many other interpretations of a similar kind put on this by spokespersons on behalf of Fianna Fáil. I do not know whether this is the authoritative interpretation of the Fianna Fáil group in the Seanad, that the interpretation of the Supreme Court should vary in the light of public opinion. I had thought the whole idea was to stop any possibility of a varying definition in the light of public opinion, that the whole philosophy and approach was to halt any possibility of a development in public opinion along those lines. And yet this is what Senator Eoin Ryan appears to be suggesting and stating clearly in that passage.
One would get the impression from the reference made to the Supreme Court that somehow the Supreme Court would be there in the maternity hospital sitting beside the doctor able to give an answer. Senator Ryan knows as well or for longer than I how long it takes to get a case to the High Court and then on to the Supreme Court. Even if it is done with the greatest urgency by way of some sort of injunctive relief it is a matter that would certainly take weeks. If it is a normal declaratory action it would take years. Therefore, in this situation where we are pointing to grave risk to the life of pregnant women it is no consolation to the woman on the line or no help to the doctor trying to remain within the law — which, presumably, doctors like every other citizen are required to do — to know that somewhere, sometime somebody might be able to mount a long and complicated case that would go to the Supreme Court.
I thought the whole purpose and thrust of the amendment was to take this out of the realm of the unpredictable Supreme Court. There was a great deal of Supreme Court knocking in the lead up to the urgency and need for this constitutional amendment. In so far as there are some attempts to answer they confirm the wide gaps in our understanding of this amendment. They confirm that the dangers that have been pointed out are not only present but are real in seeking to understand the scope of the present text.
I refer now to the second passage in the contribution by Senator Eoin Ryan where he refers to the problem of balancing between the constitutional rights, the constitutional right which we are proposing to confer on the unborn at some stage in the cycle and the constitutional right to life of the woman as a citizen, the existing constitutional right. In his contribution he referred to the questions posed by Senator Higgins to define what exactly the position would be in various medical situations in which the life of the mother and the life of the child would be in jeopardy. At column 991 he said:
I am going to attempt to give an answer to that. I am not answering it because I have any pretensions to any medical expertise, but I am going to give an answer on the basis that I can at least, like Senator O'Leary, express a legal opinion which, of course, could be wrong. Senator O'Leary said that he could be wrong. I accept that I could be wrong. I would also like to mention that the Attorney General could be wrong and the Director of Public Prosecutions could be wrong. Legal opinions are merely opinions. In these very complicated medical situations which were brought before us, the position will be, if this amendment is passed, exactly what it is at present. No change will be made in the law by this amendment. This is an amendment of the Constitution. It will not per se make any change in the law. The law which will be applicable to this kind of situation is the law under the 1861 Act which exists at present and which, presumably, will be there in the future until such time as some other law takes its place, and in that case the Constitution will ensure that that new law will be similar, basically, to that which is there at present. So the answer to these complicated questions that are asked about medical situations is that what has been permitted up to now will be permitted in the future. There will be no change. The purpose of this Bill is not to change the law, to do the exact opposite: it is to ensure that the law will not be changed in such a way as to allow abortion in the future.
That is where I disagree fundamentally but, obviously with respect for a colleague, with Senator Eoin Ryan.
This amendment will necessarily change the law and the position. It will not affect the criminal law except to confer a constitutional right on an entity, on the unborn. That is a very substantial change. Legally that is a very specific, concrete, important, practical change. We are conferring a constitutional right, we are not sure just exactly when it is going to date in the fertility cycle of reproduction, but we are conferring it. Once a constitutional right has been conferred then, as the amendment itself says, the State must endeavour to defend and vindicate it. It is a right which can be asserted in our courts. Because the fertilised ovum, or the embryos, cannot assert that right, it can be asserted by a third party on behalf of the addressee of the right, the beneficiary of the right. There is by necessary consequence of having a written Constitution, of having a whole jurisprudence on the protection of rights under the Constitution, a change from the pre-existing position. The conferring of a constitutional right on the unborn may well change the interpretation of the 1861 Act. It may well be that there could be a challenge to the 1861 Act on the grounds that it was in some way incompatible with the constitutional amendment so that the law is changed significantly in a number of ways but in particular by the fact that we create beneficiaries of constitutional rights.
The Supreme Court has stated quite clearly in, for example, the case Byrne v. Ireland in 1972 — when Kathleen Byrne brought an action against the people of Ireland and succeeded in recovering damages for injury caused to her — that for every constitutional right there is a remedy. There is the possibility of asserting that right and the courts will be open to the assertion of that right. We are not doing something abstract and illegal by stating that we are going to confer a constitutional right to life on an entity. We may be doing something very vague and hard to determine. Nonetheless the legal position is that the entity on whom we have conferred that constitutional right has a constitutional right to life and therefore has the right to have that right asserted in court, has the right to have that right defended and vindicated as far as practicable, and has the right to have that right given equality with the right of the pregnant woman.