As agreed on the Order of Business, Items Nos. 1, 2 and 3 will be taken together for the purpose of debate. Speaking time will be 45 minutes for party spokespersons and 30 minutes thereafter.
An Bille um an Dóú Leasú Déag ar an mBunreacht, 1992: An Dara Céim. Twelfth Amendment of the Constitution Bill, 1992: Second Stage.
Each of the three Bills proposes to amend subsection (3) of section 3 of Article 40 of the Constitution and their combined effect would be to deal with the various issues that arise from the decision of the Supreme Court in Attorney General v. X and some other Supreme Court decisions on Article 40.3.3º in so far as it relates to provision of information.
There is no human right more fundamental or more important than the right to life. There is a long and proud tradition in this country which regards the right to life as belonging to the unborn as well as to those who have been born. This respect for the sanctity of unborn human life was enshrined in Aricle 40.3.3º of the Constitution in 1983 by referendum of the people. That provision declares:
The State acknowledges the right to life of the unborn and with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.
Prior to 1983 abortion was, of course, prohibited in this country by section 58 of the Offences Against the Person Act, 1861, which makes it an offence to unlawfully use any means with intent to procure a miscarriage. Section 58 is still the relevant provision of our criminal law.
If one were to try to summarise the purpose those who proposed and voted for the amendment of the Constitution in 1983 had in mind, one could perhaps put it most succinctly by saying that the amendment was designed to preserve the prohibition on unlawful abortion contained in the 1861 Act.
In its decision in the X case on 5 March of this year the Supreme Court gave its interpretation of Article 40.3.3º on both the substantive issue of abortion and on the right to travel out of the State to have an abortion.
The effect of the decision on the substantive issue is that termination of pregnancy is permissible in the State where there is a real and substantial risk to the life, as distinct from the health, of the mother which can only be avoided by such termination and that a risk of suicide may constitute a real and substantial risk. That is the test laid down by the Supreme Court. The court also decided by a three to two majority that, while an injunction will not be given to restrain a woman from travelling abroad to obtain an abortion where there is a real and substantial risk to her life, such an injunction can be given to restrain travel abroad to obtain an abortion where there is no such risk.
The issue of information and counselling did not come before the Supreme Court in the X case but in previous cases that court decided that the dissemination of information on abortion is unlawful having regard to Article 40.3.3º. One effect of the decision in the X case appears to be that it is not unlawful to communicate information to women who would be entitled to a termination of pregnancy under the decision.
The decision has generated a very wide debate and concern about its implications. Initially much of the debate focused on the implications of the decision for Protocol No. 17 to the draft Maastricht Treaty. The reason that Protocol had been written into the Treaty was that, since EC law takes precedence over any conflicting provision of the Constitution, there were fears that notwithstanding the provisions of Article 40.3.3º, abortion might be imposed on this country under EC law. To meet those fears Protocol No. 17 was annexed to the Maastricht Treaty. I will be coming back to Protocol No. 17 later.
The Government took immediate action to address the issues raised by the decision in the X case. On 10 March 1992 a Cabinet sub-committee was established under my chairmanship to examine the implications of the judgment. The Government subsequently decided, on 10 April 1992 that a referendum should be held on the right to travel and the right to information, covering not only EC citizens and countries but all persons and countries, and that the other issues arising from the Supreme Court's judgment would be considered for legislation and/or referendum depending on the Government's decision on recommendations of the sub-committee.
On 9 June 1992 prior to the referendum on the Maastricht Treaty the party Leaders of Fianna Fáil, Fine Gael, Labour and the Progressive Democrats subscribed to a statement to the following effect:
All the Leaders who have signed this statement agree that the right to information, appropriately regulated by law, and to travel will be copperfastened in a further referendum in the autumn.
Legislative and/or Constitutional changes arising from the Supreme Court decision on Article 40.3.3º of the Constitution will be placed before the Dáil by the Government as soon as is practicable and, in any case, by the autumn.
Before going on to deal with the Bills individually, I wish at the outset to give a brief outline of the effect of each Bill. I shall be dealing at some length with the complexities of the issues involved later in my contribution.
The first point I want to make about the amendment proposed in the Twelfth Amendment Bill is that it will leave undisturbed the existing affirmative acknowledgement in Article 40.3.3º of the right to life of the unborn, with due regard to the equal right to life of the mother. The amendment will be an addition to the existing Article 40.3.3º, not a substitution for it. The effect of the amendment is to afford full protection to the lives of pregnant women. Under the amendment, where a pregnant woman is suffering from a physical medical condition such that her life is endangered if the pregnancy continues, the pregnancy may be lawfully terminated if that is necessary to save her life. The amendment, therefore, accepts the test set out in the Supreme Court decision in every respect except suicide. It negatives the decision in respect of suicide but in no other respect.
The proposal in the Thirteenth Amendment Bill would ensure that Article 40.3.3º of the Constitution cannot in future be invoked to prevent a woman travelling abroad, whatever the purpose of her journey.
Likewise, the proposal in the Fourteenth Amendment Bill would ensure that Article 40.3.3º cannot in future be invoked, as it was in a number of recent cases, to prevent the dissemination, in accordance with conditions to be laid down by law, of information about services lawfully available in another state. The particular service which we are talking about here is, of course, abortion.
The substantive issue, which is dealt with in the Twelfth Amendment Bill, is the one that clearly has attracted most controversy and debate. Before dealing in some detail with this amendment I think it is only right to place on the record of this House the Government's appreciation of the willingness of other parties in the House to endeavour to achieve a consensus of how best to approach this matter. Unfortunately, that consensus did not prove possible but I believe that the process of trying to achieve it at the very least threw some light on the many complexities involved. To the extent that there are some who, in effect, support abortion on demand, clearly there never was a prospect of consensus with them.
What is being proposed on this issue is the insertion into Article 40.3.3º of the Constitution of the following additional wording:
It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
As the House will be only too well aware, this wording has been strongly criticised by groups who stand at either end of the debate on this difficult, complex and controversial subject. I hope to persuade the House and the people that the more extreme views expressed on either side of the debate should be rejected and that the amendment now being proposed should be accepted as a moderate and balanced response to the problem presented.
The effect of the Supreme Court's decision was to permit termination of pregnancy where there is a real and substantial risk to the life, as distinct from the health, of the mother which can only be avoided by such termination and that a risk of self-destruction may constitute a real and substantial risk. The amendment reflects this test in every respect except that it excludes a risk of self-destruction. The Government do not regard it as acceptable that such a risk should be available as grounds for termination of pregnancy. There is considerable room for subjective judgment in assessing whether a risk of suicide exists and the availability of such a ground for termination would carry the danger of opening the way to widescale abortion. It is quite clear that the experience in other countries has been that grounds for abortion related to health, physical or mental, lead to abortion on demand.
The decision to exclude suicide was not an easy one and was only taken by the Government after thorough and exhaustive examination of the research which was available on the relationship between suicide and pregnancy.
The international literature concerning suicide and pregnancy is very complex and needs very careful and objective analysis. However, some important conclusions can be drawn. One is that suicide in pregnancy is extremely rare. Indeed, for the majority of women pregnancy seems to be good for their psychological health and may indeed protect against suicide. A second important finding is that the psychiatrist's task in assessing the risk of suicide is beset by serious theoretical and practical difficulties.
It is when we take these two findings together that the dilemma which faced the Government comes into focus. If it is the case that suicide in pregnancy is extremely rare, but if it is very difficult to predict accurately in an individual case, accepting suicidal tendencies as a ground for a termination would be likely to lead to the certain loss of many unborn children, without any certainty that even one suicide had been averted.
With the exception of a risk of suicide, the test laid down by the Supreme Court is being retained. Under the amendment all treatments necessary to save the live of an expectant mother will be allowed. Her entitlement to have her right to life vindicated will be safeguarded. The constitutional right to life of the unborn with due regard to the equal right to life of the mother conferred by Article 40.3.3º is not being diminished. Intervention affecting the life of the unborn is only justified where it is necessary to save the life of the mother.
The importance the Government attach to the need to protect the life of the mother is the reason we have not been able to accept the amendment put forward by the Pro-Life Campaign. That amendment seeks to confine the possibility of termination of pregnancy to situations where it is the indirect or unsought side-effect of treatment necessary to save the mother's life.
In proposing its formula the Government were conscious of the fact that, apart from terminations arising in cases such as cancer of the uterus, ectopic pregnancy and treatment of breast cancer, there are other life-threatening illnesses, either associated with pregnancy or exacerbated by pregnancy, in which the need to take action involving termination of the pregnancy to save the woman's life may have to be considered.
This is where the Government differs from the "pro-life" groups. These groups are prepared to say, and have said repeatedly, that there are no medical conditions, without any exception whatsoever, in which what they call a "direct" termination is necessary. They speak as if there was total unanimity among all doctors and all medical specialists on this issue. Clearly that is not the case.
Writing in The Irish Times on 16 October the Chairman of the Institute of Obstetricians and Gynaecologists stated that in a survey of their membership carried out last April a substantial minority felt there were rare cases in which, because of risk to the mother's life, direct termination of pregnancy was medically indicated.
In The Irish Times of 12 October, an eminent cardiologist was reported as saying the following:
In the practice of cardiology over the past 30 years I have seen women whose lives would undoubtedly have been endangered had their pregnancies been allowed to go to full term and I can state that unequivocally.
Speaking on the radio on 12 October the President of the IMO stated that there were differing views among their members on this question.
A letter in Saturday's newspapers signed by 13 obstetricians — including obstetricians practising in Dublin, Cork, Limerick, Tralee, Galway, Wexford, Letterkenny and Portlaoise — states in clear and unambiguous terms that "it is clear that continuation of pregnancy can pose a real danger to a small number of women" and that "whatever else results from the current controversy, Irish women must be protected from such dangers".
In the face of comments like these and others, how can anybody reasonably demand of the Government that no account should be taken of the possibility, however remote, that termination of pregnancy may be necessary to save life in the case of the other life-threatening conditions I have mentioned? Neither the Government nor anybody else who supports the proposed amendment has said that the life-threatening conditions occur frequently or are common. They are rare conditions but they cannot be ignored, especially when we are framing a constitutional amendment.
Pro-life groups make much of the distinction between "direct" and "indirect" termination mainly on the basis that an indirect termination is an unintended effect of other treatment. It seems to me that this distinction could not serve as the basis for a constitutional provision on this subject. It is difficult to see how it can be maintained, for example, that in removing a cancerous womb there is no intention of terminating the life of the foetus when that result is clearly foreseen from the very outset and is inevitable. As a matter of law foreseen consequences of an act are, of course, intended.
If our law was that only so-called "indirect" termination were permitted, how would that affect new treatment methods for ectopic pregnancy which apparently "directly" remove the foetus from the fallopian tube? Surely it is not being suggested that this treatment should be made unlawful, but would that not be the effect of a provision which would permit only "indirect" terminations?
Another difficulty in relying on the "direct"/"indirect" distinction is that these concepts do not always seem to mean the same thing to different people. I have heard it argued publicly by a pro-life spokesperson within the past couple of weeks that the new form of treatment for ectopic pregnancy is, in fact, indirect termination of the life of the foetus. Indeed, it can even be argued that it is difficult to see how any operation the sole purpose of which is to save the life of the mother could be regarded as a direct killing of the foetus. On that criterion any intervention permitted by the Twelfth Amendment Bill would be indirect.
The Government are satisfied that a distinction between so-called "direct" and "indirect" termination cannot be written into the law without threatening existing medical practice, particularly in the case of ectopic pregnancies. The Government's proposal is clear and straightforward and will not prevent what is necessary from being done in our hospitals to save the lives of mothers as is done at present. To introduce such a distinction into the amendment would be to introduce confusion and uncertainty for doctors, their patients and the courts and this is something the Government cannot accept. In the Government's view the only acceptable test is whether the action is necessary to save the life of the mother and the question of whether the action needed for that purpose constitutes direct or indirect termination is beside the point and is in any event not capable of an unequivocal answer in all situations.
What we are proposing here is that a provision be inserted in our fundamental law — the Constitution — that is likely to remain unaltered for the foreseeable future. In that situation we must do all we can to get the provision right and we would be failing in our duty to women and to their entitlement to protection where there is a risk to their life if we refused to take account of the fact that cases may arise, however infrequently, where the woman's life would be endangered by continuation of the pregnancy. If there were to be only one case in one million, or even ten or more million, we would have to take account of it. There is a duty on all of us to ensure that nothing is put into the Constitution which might, even in the remotest possible case, mean that action that was necessary to save a woman's life would not be taken.
There is no warrant whatsoever for any suggestion that the amendment will open the door to abortion. Most emphatically it is not an abortion amendment. Far from making the law concerning abortion more permissible, as some people are wrongly suggesting, the amendment will have exactly the opposite effect: it will prohibit abortion in circumstances where it is now permitted without disturbing existing medical practice and without putting mothers' lives at risk. It is a provision that arises from a woman's entitlement to protection where there is a risk to her life and it enshrines that protection.
I submit that in all conscience we could do no less than we are doing. The Government's proposal should satisfy the concerns of all who wish the law of the land to protect the life of the unborn in Ireland. It would be a tragedy for the unborn if the amendment were to be defeated in the forthcoming referendum by a combination of those who do not wish the unborn to be protected by the law — that is, who in greater or lesser degree favour permitting abortion in this country — and certain misguided persons on the pro-life side who seem to be blind to the merits of the amendment from their own point of view.
I do not think, either, that there is any basis for suggesting that the test whereby a termination is permissible where there is a real and substantial risk to the life of the mother is out of line with what our law was even before the X case.
First, the 1861 Act which prohibits abortion does not contain a blanket prohibition; what it prohibits is "unlawful" abortion. From the beginning the use of the word "unlawful" has given rise to the view that the Act envisaged that there were circumstances in which the termination of a pregnancy was legally permissible and the general view always seems to have been that termination necessary to save the life of the mother was legally permissible. Therefore if a case had come for decision by the courts solely by reference to the 1861 Act, it seems highly probable that a termination of pregnancy in those circumstances would have been allowed.
Secondly, our Constitution provides in Articles 40.3.1º and 2º an explicit guarantee to protect and vindicate the right to life of all persons, including, of course, expectant mothers. It is reasonable to suggest that if a court had to choose between the right to life of the mother and the right to life of the foetus, that explicit Constitutional guarantee would impel the court to save the life of the mother. Judge O'Flaherty in the X case intimated that the court would have come to the same decision, even if Article 40.3.3º did not exist.
Thirdly, even considering Article 40.3.3º, it seems to me that that provision, looked at critically, inevitably raises, as the Supreme Court recognised, the question of what happens when there is a conflict between the right to life of the mother and the right to life of the foetus. That is a question which most people, in common with the Supreme Court, will agree should be answered in favour of the mother.
Leaving aside the suicide aspect, the substance of the Supreme Court decision is, in my view, fully in line with preexisting law and I imagine is widely acceptable. That is why the proposed amendment reproduces the substance of the decision.
The inclusion in the amendment of the phrase "as distinct from the health" has been criticised by some particularly on the basis that it is offensive to women. I hope that when I explain the reason for its inclusion it will not be seen in that light.
The phrase reflects the Supreme Court decision in so far as it provides that the risk must be to the life of the mother in the sense that unless the risk is avoided she would die. The phrase is taken from the Chief Justice's judgment but it is clear that the other Judges also had in mind a risk to life rather than a risk to health. The reality which we cannot ignore is that in other jurisdictions risk of damage to health is the ground which has led to widescale abortion on demand. It is in order to prevent that situation developing here that the phrase is included in the amendment.
Some doctors have expressed concern that the inclusion of the phrase "as distinct from the health" could have the effect of restricting a certain flexibility which under current medical practice doctors are permitted to exercise in the best interests of the patient. It is suggested that in any medical condition there is a spectrum of gravity and it is impossible to identify a precise point at which the risk changes from a risk to health to a risk to life. The concern of the doctors involved seems to be that the wording may result in their being forced to have a greater degree of certainty about the risk to the mother's life before providing treatment which may result in the loss of the foetus, whereas normal medical practice cannot operate on the basis of certainty but only on the basis of probability.
I think that I can provide reassurance on this point. The intention of the amendment is that a risk to health unrelated to a risk to life is not sufficient to warrant termination of the life of the unborn. It is not the intention of the amendment to affect in any way the degree of probability of risk to life that is necessary to warrant treatment resulting in termination. In the X case the Supreme Court laid down the test as being a real and substantial risk to the mother's life arising as a matter of probability. There is nothing in the proposed wording which would change that.
I want to allay fears which have been expressed by some that the use of the words "as distinct from the health" in the amendment might result in pregnant women being denied necessary medical treatment to protect their health. There is no basis for such fears. Under the amendment women will continue to receive all necessary medical treatment to protect their health. Current medical practice in this regard will not be affected. Under current medical practice the question of termination of pregnancy only arises where there is a threat to the mother's life. After all, the amendment does no more than adopt the test laid down in this regard by the Supreme Court in the X case and there has been no suggestion that medical practice regarding necessary treatment to protect women's health has been affected in any way since that decision.
The suggestion that the words "as distinct from the health" should be omitted from the proposed amendment really boils down to this — that it should be possible to terminate the life of an unborn child where there is no risk to the life of the mother. Let there be no doubt about one thing. The amendment as it stands will allow all necessary treatment to be provided for an expectant mother, even if it would result in the loss of the life of her unborn child, in all circumstances where the life is at risk. There is no basis whatsoever for any suggestion that the amendment we are proposing here today will leave a woman without protection in any situation where her life is endangered. The clear intent of the amendment and the clear meaning of the words it uses is that medical intervention will be allowed in all situations where it is necessary to save the mother's life because of a life-threatening physical, medical condition from which she is suffering.
If the Government saw any way that the words "as distinct from the health" could be omitted without giving rise to a real danger that this might eventually lead to abortion on demand, we would have left them out. It can be argued that a reference to "life" on its own should be sufficient — on the basis that "life" means "life" and not "health" and that the reference to "life" in the existing Article 40.3.3º has been interpreted by the Supreme Court in the X case as not including health. However, the words "as distinct from the health" formed part of the test enunciated by the Chief Justice in that case. If those words were to be omitted now from a constitutional provision which reproduces the essence of that test, significance might well be read into that omission. In a future "hard" case health unrelated to a life-threatening condition might be found to be a ground for abortion, as happened in Britain in the Bourne case with the results we are all familiar with.
Health unrelated to a threat to life has never been a ground for medical intervention where it is foreseen and, therefore, intended that the death of the unborn child would result. Unforeseen death of the foetus in the course of a medical intervention to protect the mother's life or her health, where all due care is taken to preserve the life of the foetus, is, of course, an entirely different matter and is not prohibited by law anyway. What the proposed Twelfth Amendment to the Constitution seeks to do is to maintain a just and proper balance between the right to life of the mother and the right to life of the unborn child.
A further criticism which has been made of the amendment is that it does not provide adequate protection for women in a situation where there would be a risk of the life of the mother being shortened rather than of her immediate death. In particular it has been suggested that the proposed amendment would not allow a woman to have her pregnancy terminated if she suffered from a medical condition — for example, a severe heart condition — which did not pose an immediate threat to her life but which would result in her early death if her pregnancy continued to full term. It has been suggested that the use of the word "necessary" implies that there must be an immediate risk to the mother's life.
It is clear that this does not follow. In the X case the Supreme Court held that termination of pregnancy is permissible where there is a real and substantial risk to the life of the mother which can only be avoided by termination. The formulation "which can only be avoided" seems to be at least as stringent as "necessary". Nevertheless, the Supreme Court also found that the risk to the mother's life need not be immediate. In fact, it expressly rejected a submission that termination would be permissible only if it were established that an inevitable or immediate risk to the life of the mother existed. The proposed amendment does not disturb or change that finding in any way and does not require an immediate risk to life.
Immediate necessity for termination of a pregnancy and immediate risk to the mother's life are, I suggest, two different things. The words "necessary to save the life" mean that a pregnancy could be terminated if the doctors were able to form the view that, even after childbirth and recovery of the mother from it, other treatment for whatever she was suffering from would be ineffective to save her life.
On the substantive issue one of the key questions the Government had to address was whether the implications of the Supreme Court decision in the X case should be dealt with by way of legislation or an amendment to the Constitution.
I know that some Members of the House are of the view that to proceed by way of legislation rather than an amendment of the Constitution would be better. However, any legislation which would be introduced without an amendment of the Constitution would have to accept in full the findings of the Supreme Court in the X case, including the finding that a risk of suicide would be a ground for abortion. Suicide as a ground could not be removed by legislation alone. Also, without an amendment the possibility could not be excluded that at some future date the grounds for abortion could be widened.
I appreciate that concerns have been expressed that to deal with this matter by way of an amendment of the Constitution carries with it the danger of an emotive and divisive public debate. The fact that a particular issue gives rise to strongly held and often opposing views can hardly be accepted as a reason for not allowing the people to have a final say on that issue. There is a substantial body of opinion among the general public that the position now obtaining under Article 40.3.3º of the Constitution, in so far as a risk of self-destruction can serve as a ground for termination, is at variance with what many people thought it would be when that provision was adopted by referendum in 1983. The Government consider that it is only right that the people should be given a say as to whether they want that position modified now.
Should it transpire that the people decide not to adopt the Twelfth Amendment, the Government have decided to introduce legislation instead to regulate the position obtaining as a result of the X decision. The Minister for Health is at present working on a summary of what this legislation would contain.
The extraordinary suggestion has been made in some quarters that, by indicating at this stage their intentions about legislation in the event of the proposed amendment not being adopted, the Government in some sense are issuing a threat to people who may not be satisfied with the proposed amendment from a pro-life perspective to, as it were, "vote for it or else." This suggestion is nonsensical. The plain fact of the matter is that if the position obtaining after the X case is not addressed by way of an amendment to the Constitution, it can only be dealt with by legislation.
The Government are proposing an amendment of the Constitution and, after full and careful consideration of what is involved and of all the implications are proposing the form of amendment which they are satisfied meets the need to safeguard the lives of pregnant women while, at the same time, giving the maximum possible protection to the right to life of the unborn child consistent with that. If that amendment is defeated, which incidentally I do not believe will happen, it is the Government's firm and considered view that the only practicable alternative is to legislate on the basis of the X case. That is simply a fact. It is not meant to be a threat or to put pressure on anybody to vote in a particular way in the referendum. The reality of the situation is that, if the Government were not prepared to indicate what form our legislative proposals would take in the event that the constitutional amendment did not pass, we would be open to legitimate criticism. I fail to see how anybody can seriously suggest that we are to be faulted for ensuring that the people will be fully informed about the whole picture when they vote in the referenda on 3 December.
The question has also been raised whether legislation should be introduced which would supplement the amendment, if passed. It seems to me that the test proposed in the amendment is a straightforward one based on whether termination of pregnancy is necessary to save the life of the mother, and should not give rise to difficulty in practice. The Government are not at this stage persuaded of the need for such supplementary legislation. We will, of course, listen carefully to any views expressed on this matter during the course of the debate.
The House will be aware that Protocol No. 17 to the Maastricht Treaty saves the application in Ireland of Article 40.3.3º from the effect of EC law which, under the Constitution, takes precedence over any other conflicting provisions of the Constitution. The Protocol was designed to ensure that abortion would not become legalised in the State by virtue of EC law. The Protocol relates to Article 40.3.3º as it stood on 7 February 1992 when the Treaty was signed. On the face of things, Article 40.3.3º as interpreted by the Supreme Court should retain the protection of the Protocol when the Treaty comes into effect and this would mean that abortion could not in any event be legalised beyond the extent permitted by the Supreme Court. The Solemn Declaration on the Protocol to the Treaty, adopted by the member states on 1 May 1992 provides that, in the event of a constitutional amendment of Article 40.3.3º, the contracting parties to the Treaty, following the entry into force of the Treaty, will be favourably disposed to amending the Protocol so as to extend its application to any such constitutional amendment. If the Twelfth Amendment of the Constitution is passed, the question of invoking the procedure set out in the Solemn Declaration, with a view to securing an amendment of the Protocol, will be taken up.
To sum up, the Government have taken a balanced and considered approach to the very difficult problems associated with the substantive issue. We recognise the genuineness and the depth of people's feelings and concerns about this whole subject, whether from a pro-life or pro-choice or other point of view. Our objective is to do what is right in the public interest. We have been motivated by deep concern for the right to life of women. We are also fully committed to the protection of the right to life of the unborn. We are not prepared to take any chances where the life of the mother is at stake and we want to ensure the maximum possible protection of the right to life of the unborn consistent with that.
I turn now to the Thirteenth Amendment Bill regarding travel. The background to the proposal in this Bill must be seen in the context not only of the Supreme Court's decision in the X case but also in the context of EC law.
In that case, three of the Supreme Court judges decided that the constitutional right to life of the unborn took precedence over the constitutional right to travel of the mother, so that an injunction can be granted by virtue of Article 40.3.3º against women going abroad for an unlawful abortion that is, one in which there is not a real and substantial risk to the life of the mother, as enunciated by the Supreme Court.
With regard to the EC aspects, the Protocol to the Maastricht Treaty provides that nothing in the Treaty or in the European Community Treaties shall affect the application in Ireland of Article 40.3.3º of the Constitution. Assuming that the Maastricht Treaty comes into force, the Protocol will then form part of the European Community Treaties and it will be for the European Court of Justice to decide what the Protocol means.
The Irish courts will be bound by that court's interpretation of the Protocol. The main purpose of the Protocol was to ensure that abortion would not become legalised in the State by virtue of EC law. Freedom of travel to other EC states for an abortion was not envisaged as being affected. However, the argument has been made that the Maastricht Protocol, if passed, would copperfasten the effect of the Supreme Court judgment in relation to travel and would nullify rights of movement conferred by the EC and Maastricht Treaties.
Whether this is correct depends, of course, on the proper interpretation of the phrase in the Protocol "the application in Ireland of Article 40.3.3º". On the other hand it can, also, be argued that the phrase must be intended to refer to effects in Ireland only and cannot restrict movement or actions outside Ireland. That has been the contention of the EC Council's legal service.
Freedom of movement of persons is one of the freedoms guaranteed by the EC Treaties. It is part of the Community's legal order that people are free to move to any place in the Community, either to work or to establish themselves, or to provide or receive services. This freedom, as is clear in particular from provisions of the Maastricht Treaty, is a fundamental principle of the Community and will be of growing value in the years to come. Because of the fundamental importance of freedom of movement in the EC it is likely that if in future the European Court had to deal with the issue, it would decide that the Protocol did not envisage Article 40.3.3º having extra-territorial effect and that injunctions against leaving the country for another EC member state could not be issued consistent with EC law.
However, to avoid any uncertainty about the matter the Solemn Declaration on which the Government got agreement among EC partners affirms, in effect, that the Protocol as it stands protects the right to travel between EC states and under generally recognised rules of interpretation of international treaties — I am referring in particular to the Vienna Convention on the Law of Treaties — the Declaration would have to be taken into account in interpreting the Protocol.
The Government's proposed constitutional amendment on travel is designed in any event to put exercise of the right to travel beyond doubt and to make it clear that it cannot be restricted by reason of Article 40.3.3º. This is in line with the commitment in the statements of 9 June 1992 of party Leaders, which I have already mentioned. It will also ensure freedom to travel to all states, not just to other member states of the EC. I think it is fair to say that there is wide support for the Government's proposal on this matter.
I come now to the third Bill, the Fourteenth Amendment of the Constitution Bill on freedom to provide and receive information. This issue did not, as I have said earlier, come before the Supreme Court in the X case. However, the Supreme Court decided in cases in 1988 (The Well Woman Centre case) and 1989 (the Grogan case) that the dissemination of information on abortion is unlawful having regard to Article 40.3.3º. Following the X case that prohibition extends only to information on abortion not covered by the decision, that is abortions in cases where there is not a real and substantial risk to the life of the mother. In The Well Women Centre case, which is at present before the European Court of Human Rights on allegations of breaches of the European Convention on Human Rights, the State has conceded that point.
The information issue was raised before the EC Court of Justice in the Grogan case. The effect of the decision of the Court of Justice is that, while lawful abortion in a state constitutes a service within the meaning of the EC Treaty, it is not contrary to Community law for a member state in which abortion is forbidden to prohibit the distribution of information about abortion services available in another member state, where there is no economic link between the provider of the abortion service and the distributor of the information — in the particular case the distributor was a students' association. The court did not specifically decide, but could be taken as implying, that if there was such a link the distribution of the information would be permissible under Community law. That aspect, including the conditions which might be placed on the provision of information, has not come before the court in any case.
On 7 August, 1992, the High Court granted a permanent injunction in the Grogan case restraining the students from distributing information on abortion clinics abroad. The judge in the case identified a profound distinction between the distribution of the documentation and information in which the students were engaged — distribution to the community at large and university students in particular — and communication of such information to a clearly defined and extremely restricted type of person identified by the Supreme Court in the X case.
As in the case of travel, the question of the freedom to give and obtain, in the State, information about abortion facilities in another EC state has been raised in the context of the Protocol to the Maastricht treaty. The argument has been made that the Protocol would nullify rights to information conferred by EC law. The solemn Declaration on which the Government got agreement among EC partners deals with the matter. It affirms that the Protocol protects freedom to obtain, or make available in Ireland, information relating to services lawfully available in member states. The Declaration also provides that the information may be subject to Irish legislation that is in conformity with EC law. As I have already said, under generally recognised rules of interpretation of international treaties, the Declaration would have to be taken into account in interpreting the Protocol.
On the basis of what we know from the Grogan case, as dealt with by the Court of Justice, there is no absolute right to information under EC law — the right, indeed, may be subject to the appropriate conditions laid down in national laws. The fact is that member states have a reasonable margin of discretion to decide what should or should not be permissible in their national laws on abortion information, and some EC states have controls on public advertising of abortion services.
As I have mentioned, the question of the right to information is before the European Court of Human Rights at present in a case involving The Well Woman Centre. That court is due to issue its decision on 29 October but there are no grounds for believing that that will interfere in any way with the amendment on information.
The proposed amendment would enshrine in the Constitution the right to receive and impart information subject to such conditions as may be laid down by law. This, again, is in line with the commitments given in the party leaders' statement. The amendment would not permit directive counselling but would permit non-directive counselling. Directive counselling, as I understand it, is systematic guidance and advice and involves abortion referral. Non-directive counselling, on the other hand, consists of the provision of information and does not involve abortion referral. Non-directive counselling would clearly be covered by the right to obtain or make available information which is provided for in the amendment.
In conjunction with publication of the constitutional amendment Bill on information, the Government's view is that the House and the people should be aware of what the Government's approach would be on supply of information. It is proposed to distinguish between two types of information. The first concerns information provided by, for example, a doctor or an advice agency, to a pregnant woman who seeks advice concerning her own specific circumstances. It will be a requirement that, in such circumstances, information must be given in the context of non-directive counselling on the full range of alternative options available to the person concerned. "Non-directive counselling" means setting out all the available options in order to let the person make an informed decision for herself.
I have been told that many Irish women arriving at clinics in Britain for abortions are found to have received no counselling before leaving Ireland. Quite apart from adding to the anxiety and stress of the women concerned, there is no doubt whatsoever that this results in abortions which could have been avoided. Some women who would otherwise have had abortions choose, after counselling, to continue with their pregnancies.
It has been submitted that following the 1988 Supreme Court decision concerning information doctors have been unsure of their legal position regarding counselling in crisis pregnancy. The proposed legislation will not only resolve this uncertainty, but will go further in a positive way by linking the provision of abortion information in crisis pregnancies with the provision of full non-directive counselling.
The second type of information distinguished in the legislation will be information of a more general nature, which is not directed at the circumstances of an individual case — for example, general factual material which may be published in books or magazines or transmitted on radio or television. Such information will only be permitted in so far as it is factual in nature and does not seek to promote abortion in preference to alternative courses of action. It will also be a requirement that the services concerned and the content of the information must be fully in compliance with the law of the country in which the services are provided. It is also proposed to include in the Bill a provision enabling the Minister for Health to make regulations on more detailed aspects of these controls, should they prove necessary.
The legislation will completely prohibit certain methods of providing information such as, for example, billboards, wall posters or the distribution of unsolicited leaflets. I am very aware that there is a deep abhorrence of abortion on the part of most Irish people. While there must be freedom to obtain information where it is needed, I do not think it would be considered acceptable that people would be confronted by abortion information on billboards or notices in public places, or on leaflets delivered through their doors. As in so many of the other issues in this entire debate, it is a matter of balance and the Government will strive in the detailed legislation to get the balance right.
I want to refer to one final point. The decision of the Government has been to put the issues to the people as separate amendments in separate referenda on the same day rather than in one amendment which would deal with the issues together. It is the view of the Government that the advantage of separate referenda is a greater degree of choice in that the people will be enabled to exercise their choice separately in respect of each issue. Voters will be able to vote for or against each issue and each amendment will be decided in its own right and on its own merits. There appears to have been a general welcome for that approach among the public and I am sure the House will agree that it is the most democratic way of dealing with these important issues.
I commend the Bills to the House.
Tairgim leasú a 1:
Go scriosfar an focal "anois" agus go gcuirfear na focail seo a leanas i ndeireadh na tairisceana, eadhon "an 15 Eanáir, 1993, nó ar cibé dáta is luaithe ná sin a cinnfidh an Seanad, tar éis don Seanad i dtosach plé a dhéanamh, go dtí Céim an Choiste agus an Chéim sin san áireamh, ar reachtaíocht atá ceaptha chun léiriú breise a dhéanamh ar an gcaoi a gcuirfear forálacha an Bhille seo i ngníomh go praiticiúil".
I move amendment No. 1:
To delete "now" and add at the end of the motion the words "on 15 January, 1993 or on such earlier date as may be determined by the Seanad after the Seanad has first discussed, up to and including Committee Stage, legislation designed to elaborate on the practical implementation of the provisions of this Bill.".
I propose to share my time with Senator Doyle.
Is that agreed? Agreed.
I welcome the Minister to the House and thank him for the comprehensive account he has given us of his proposals.
I move the amendment because I believe the country is being rushed into a referendum without adequate consultation and on words that are fundamentally flawed, the consequences of which have not been thought through. At its most simple, there are divergent views on the meaning and implications of the words proposed. There is a disagreement within the Government and this is public knowledge. There is disagreement of a fundamental nature between the political parties in both Houses in regard to this matter. There is disagreement at the highest levels of the legal profession as to the implications in future cases of the words proposed. There is disagreement among medical practitioners on what the words should be. There is disagreement between the churches. I take with the utmost seriousness the views and misgivings of the Church of Ireland on this matter. There is even, believe it or not, disagreement within the so-called pro-life campaign on the words. That great expert on feminism, Professor Cornelius O'Leary, spoke out today against some of his colleagues in the pro-life campaign. There is certainly confusion and anger among women as to the implications of what is being proposed.
It is because we feel there is obvious uncertainty and an extraordinary lack of clarity and certainty that we ask why is this measure being steamrolled ahead. The beef tribunal is not the only place where people should cool it today. There is a strong and compelling case for us to defer this matter, to allow it be diffused and to see if the strange thing the Minister calls "consensus" can be reached on this question.
The Minister who has been given the job of bringing this legislation through both Houses may have many fine qualities but one quality few would associate with him is humility or self-doubt. It may be that in his private life the Minister is a model of humility such as would make St. Francis of Assisi look macho but in his public life the Minister carries himself with a swaggering self-certainty probably unparalleled in public life. He has brought all that self-certainty, the absence of a slightest doubt, to bear on the way which he has handled this legislation today.
It is not just today. Let us go back to 1983; on that occasion Deputy Flynn was certain he was right, so certain in those days he could daub those who differed from him as being in some way suspect on the question of abortion. He could sweep aside any doubts that the words might be defective, that they might be challenged at some later date. He was certain his fellow politicians then could not be trusted. Then it was certainty all the way, certainty and a touch of low politics.
Some of the Minister's statement and assertions of that time make sad and sordid reading today, as, indeed, do those of his colleague, Deputy Woods, who called this the Fianna Fáil amendment. We all knew what it was about then. One may well say that was then and that we now have a new, kinder and wiser Padraig Flynn.
And older. If we believe the public prince, if we believe what we are told that transformation has taken place — Padraig Flynn. Mark II, has been unveiled. All I ask is that the Minister has learned. I do not care what his public relations people do. All I ask is that he has learned from the sad experience of nine years, but clearly he has not. We have the same certainty but this time it is not just theological; it is gynaecological, it relates to obstetrics, the certainty now extends to the most intimate details of womanhood.
I am sure Mná na hÉireann, the women of Ireland, will be impressed with the Minister's certainty and expertise on matters of this kind. Through all of it is that one constant thread of self-certainty. Never for one moment is there a possibility of doubt; even where eminent gynaecologists disagree our Minister is certain. Even where eminent lawyers have doubts, our Minister has none. Where the Church of Ireland has genuine fears and doubts our Minister has none. Where Archbishop Caird feels the need to speak out publicly he does not even get a reply from our Minister.
Let us not forget that this amendment first, middle and last is about women. Where sensible women have doubts and worries, our Minister says with breathtaking certainty, "Trust me; your fears are baseless and have no ground." Women do not trust the Minister on this matter and neither does anybody outside his own party in this House. It is as if the past ten years never happened, as if we have learned nothing.
Nine years ago I opposed the holding of the referendum. I believed then that the law was secure and sufficient and if it was not that there was sufficient political consensus in the Oireachtas at the time to give us the most secure guarantees. I trusted the people elected to both Houses to see that those guarantees were kept. I trusted and valued the integrity of my colleagues. I believed that at the time and I campaigned on that basis. I am in a minority on that and I accept my minority status, but I still believe it is the best approach.
I believe strongly that if that is the way we are going it is more important than ever that we have adequate legislation enshrined before we ask the people to vote on the constitutional provision. If it is contended that we cannot go ahead to establish a framework for divorce without detailed and adequate legislation, surely it is all the more compelling that we have legislation on the even more difficult question of abortion where there is a need for certainty, subtlety and nuance and where only legislation can deal with the matter.
There is a contradiction in the Minister's speech. He stated that, on the one hand, it is not possible to have legislation because of the X case. Yet, he stated that if the people reject the Government's proposal there will be legislation. Surely that is a contradiction? Either legislation is possible or it is not and I am not persuaded it is not constitutionally possible to have the sort of legislation we are talking about here.
The Minister talked about the referendum and people's fears that a referendum would be divisive. Nobody is worried about a referendum being divisive. We would all prefer if it was civilised, easy and relaxed, if people did not say harsh things about each other or disagree strongly, but that is the nature of politics. We expect the referendum issues to be divisive. We are not opposed to it because it is divisive. That is part of its purpose, to divide people into different points of view. Our opposition — and mine — to the referendum on this matter is that I do not believe in the absence of legislation that it is a proper way of deciding on a subtle matter where there are many nuances. I believe it is a crude instrument and before long we will find that the words enacted, any form of words, are likely to be challenged in the courts.
The Minister made great play of the word "consensus" and very piously mentioned the great sadness of the Government that consensus was not reached. They were sweet words, and they were a fraud. The whole attempt at consensus was a charade from start to finish. There was no attempt made to talk about the issue once during the long months of the summer. There was no exchange of papers, there was no structured discussion between the groups. Once the Government published their words there was not a slightest possibility of movement and that has proved to be the case. The approach was, "Agree with us, or else". It was like Henry Ford's choice of cars; "any colour you like so long as it is black". The Government's approach was that we could have any form of words we liked so long as they were their words.
In the words of the late John Kelly, Fianna Fáil and consensus would make a cat laugh.
We saw what they meant by consensus in regard to the Maastricht referendum The party were in a difficulty approaching the referendum and, suddenly, the other leaders were called in to assist them on a consensus basis. Consensus worked throughout the campaign. When did it end? When the ballot box showed an overwhelming majority in favour of Maastricht, there was a press conference in Dublin Castle. Were Fine Gael, Labour or the Progressive Democrats there? Not at all. Once it was over it was a Fianna Fáil victory and consensus died. I am sick and tired of being told that the Government sought consensus on this matter. The Government did not look for consensus, they have not changed their mind once since this issue began.
The Government consensus reminds me of the old catechism, of something called presumption, which is defined as a foolish expectation of salvation without taking the means necessary to attain it. On this matter, the Government have been guilty of an enormous degree of presumption.
Is that the new catechism?
That is the old catechism, not the new one.
Senator Manning, without interruption.
The Government's game plan in all of this has been very clear. They sought to come up with a clever form of words in order to get Fine Gael offside, more importantly, to get their colleagues in Government offside, for them to get onside with the so-called pro-life movement and the bishops would support the lesser of two evils. It has not worked that way. It has backfired very badly.
I would like to nail a lie that has been current, that Fine Gael and the Labour Party are divided on the issue and that secretly we support the Government's wording. I cannot speak of the Labour Party, but I am sure Senator Upton will do so. I know from experience in my own party that there is total agreement in the party on our position on the words proposed. At two meetings of the parliamentary party there was not one dissenting voice. There is no question of there being "sneaking regarders" in this party who are going around saying they prefer the Government's wording. That simply is not true. It may be wishful thinking.
That is presumption.
Senator Manning, without interruption.
I want to say a few words about our colleagues, the Progressive Democrats and I regret they are not here to listen.
What about the Labour Party?
Perhaps I might have the support of Fianna Fáil on this. I have great respect for the three members of the Progressive Democrats in this House and I am particularly friendly with two of them. Nonetheless, over the years, the Progressive Democrats have never hesitated to assail the motives and at times the integrity of those with whom they disagree, while expecting universal acceptance from the rest of us of their good faith and integrity on all matters. I remember in particular the 1987-89 period and some of the intemperate and offensive language used against my party by members of the Progressive Democrats at that stage and, in fairness, much of what they said about Fianna Fáil was way over the top on occasion. There is a certain wry amusement in this regard. If the Fine Gael Party were saying one thing, voting another way in the Houses, and campaigning a third way, can you imagine the sort of charitable response of Mr. McDowell to our behaviour or the honeyed words that would drip off the pen of the Government Assistant Press Secretary?
Mr. McDowell is not a Member of the House and, therefore, cannot defend himself.
That may also have been an act of presumption, on my part. Let me point out the sort of charity which would be extended to other parties if that was the case. I hope the Progressive Democrats will learn a little humility from all of this, that there are honest differences of opinions within parties on all issues and that no party has a monopoly of right or total possession of the high moral ground.
On the question of voting, let me say to the Progressive Democrats that the place to vote against the Bills was at Cabinet in the first instance. There they could have taken the honourable course and walked out, or they could have voted against them in the other House where there votes would have made a difference. Voting against them here, where the arithmetic guarantees the Government will not be defeated, is an empty gesture and I would prefer if they did not damage their credibility further by doing that.
We want these Bills referred back, we want the offensive section in the Twelfth Amendment which refers to the health of women deleted. The Minister was more than disingenuous when he spoke here today and quoted from a letter written to The Irish Times, and some other newspapers, last Saturday from 13 eminent gynaecologists. The import of that letter was very simple, that there is such doubt they could not guarantee that at a future date women's health would not be in danger if this amendment is passed. The Minister twisted it here to support his viewpoint, he made a direct attack on that case. We believe there was basis for discussion between the parties on that clause and that the Government have missed—
There was discussion, the Senator should ask his leader.
I have discussed the matter fully with my Leader and I know exactly what happened.
It was a charade.
It was a charade.
Senator Manning, without interruption, please.
I am glad the Senator agrees it was a charade.
On your part.
You are involved in university politics, you are involved in business and you know that when consultations take place position papers are exchanged. Structured discussion takes place, and at least there is acceptance on both sides——
I ask the Senator to address his remarks through the Chair.
The Senator knows well this was a charade and that there was no attempt at moving——
A fait accompli.
Because I am sharing my time I will conclude by stating why we want this Bill referred back. We are opposing it because of the fundamental flaws in the wordings. We are opposing it because we want the offensive and potentially damaging references to the health of women eliminated. Those words serve no purpose. They are a potential time bomb.
At the very least, opinion is divided on the matter. Even if there is a potential danger it should be removed, but I believe the danger is greater than that. We oppose this because we want legislation in place before the referendum is held for the simple reason that the words are a blunt instrument open to misinterpretation. We want legislation, just as we agree there should be legislation in place for a divorce referendum. We want legislation because we have faith in the good sense and the bona fides of the overwhelming majority of the Members of both Houses. We believe that through an orderly Committee Stage debate an agreed legislative framework could be reached.
The Minister's speech was sweet reason in places but it also contained the little bear trap which he brought with him in his artillery from the days of 1983. The Minister said those who oppose the referendum are either misguided prolifers or, and I quote, "those who do not wish the unborn to be protected by law". Those are the Minister's words. There are the two categories — you oppose this because you are misguided, out with Senator Des Hanafin, or you oppose this because you do not wish the unborn to be protected by law. The people on this side of the House and in my party are as pro-life as any group in this House or in the country. We will not be told by a Minister that because we follow our conscience, because we follow the best advice we can get, because we want certain changes and because we oppose the wording in good faith we do not wish the unborn to be protected by law. Let us nail that lie once and for all. We are opposing this amendment because we believe it is defective and dangerous. It should be put off until cooler words can be spoken and we have time to look at it all again. We support the Bill on travel, we support the Bill on information but we oppose the Twelfth Amendment.
I second the amendment moved by Senator Manning. At the outset we have got to ask ourselves what we are doing here today, why this debate has arisen and why we are in this situation in the wake of the tragedy of the X case and the whole mess of the Protocol to the Maastricht Treaty.
Basically, we are here because a certain section of the community believed back in 1982-83 that their view on morality should be enshrined in our Constitution. That same section insisted on their wording, and theirs alone, being inserted in our Constitution. They were supported by Fianna Fáil in both Houses against the best advice of many at the time, including the Attorney General. In 1983, we in Fine Gael did not approve the wording that was being promoted for the amendment. Foolishly with the wisdom of hindsight — as did Fianna Fáil and others — we got caught up in preelection promises to put a referendum before the people on the issue even though we did not approve the wording that was fully voted through both Houses at the time. We had been advised by Peter Sutherland, our Attorney General, that it did not make sense, that it was a legal minefield and he has subsequently been proved to be quite right on that. We must suffer the consequences because we were in Government at the time and, as I said earlier, we must face up to whatever resolution of the difficulties is now necessary. It must be put accurately on the record how the wording ended up in the Constitution and the views of the different parties in this House and elsewhere in relation to it.
Morality or moral principles cannot be provided for in our Constitution. The Constitution is only suitable for enunciating democratic principles as distinct from moral principles. The function of the courts in upholding a Constitution is to ensure democratic principles of behaviour. Republican principles, as guided by Wolfe Tone and others in forming their Republican philosophy, are the principles I like to see in our Constitution, the principles of liberty, equality and fraternity, for example, democratic principles, not moral principles of behaviour. All these democratic principles can be provided for in any Constitution. We can guarantee freedom, equality under the law and the national identity under the flag, but a Constitution cannot guarantee personal morality, sexual or otherwise.
Many points have been made by the Minister and I commend him for his time and the detail in his wide-ranging speech. We have to ask ourselves why, as a nation, we are so obsessed with sexual morality. There are other vast areas of morality that are barely mentioned in these Houses or elsewhere but you can be sure that when there is an issue of sexual morality, the nation will be convulsed including both Houses of the Oireachtas and a great deal of time will be spent debating the issue but never reaching a satisfactory conclusion. All parties in these Houses have split on the question of family planning and the condom issue; three times we have debated these issues and three times we have split on them and we have yet to get it right. This is the fourth debate in the past ten years on what is referred to as "the abortion issue". The first debate took place prior to the 1983 amendment and this is the third time I have spoken in the Seanad this year on the abortion issue.
There is no question but that the substantive amendment before us, the Twelfth Amendment of the Constitution as proposed, will provoke serious litigation. The Minister for Justice referred to this but I would like the Minister for Health — who I welcome to the House — to explain when a serious health problem becomes life threatening for a woman. The Minister for Justice referred to the spectrum and the degrees of health problems. There is a point on that spectrum where a health issue becomes serious and a life threatening issue.
How will any doctor, a GP, be able, with any certainty, to decide when a health issue becomes life threatening for a pregnant woman or a woman faced with a crisis pregnancy? What happens if a doctor refuses treatment or refuses termination of the pregnancy and the woman subsequently dies? What happens if a doctor goes ahead with treatment and subsequently there is a malformation of the child? There is a range of areas for litigation here. I can see doctors going to the courts for direction on individual cases. What is now being proposed in relation to the substantive amendment is a minefield for litigation.
The Minister rightly said, "Normal medical practice operates on a basis of probability, not certainty". We agree with that, but the inclusion in the Twelfth Amendment of the words excluding the health of the mother makes nonsense of what the Minister said here today.
Frankly, as a woman, I feel abused by the Minister's treatment of me and other women on that issue; I feel abused by the Government's treatment of me and every other woman in the country on this issue. I feel abused that there should be a distinction between my health, a serious threat to my health and any threat to my life on this issue. Late in the day as we are, given that I know this Government are not listening, have not been listening and never really wanted consensus, I would urge the Minister for Health, avove all, to take the message back to the Taoiseach and his colleague, the Minister for Justice, how strongly the women of Ireland feel about how they are being treated.
This amendment will protect them.
I feel abused and you tell me I am protected. We are very far apart, Minister, on this and I represent the view of most woment between the ages of 14 and 50, the category of women most threatened by what is before us today. Please listen to us.
I ask Senator Doyle to address her remarks through the Chair.
If only the Minister for Health would listen to the views of the women today, sensible balanced women without radical views, the ordinary woman in the street. Why have this Government, all of a sudden, decided not to listen to their views and effectively abuse them by what is proposed in this House and was passed in the other House in the wording of the substantive motion?
I ask the Minister for Health to indicate what we are doing here today debating the particular wording. Whose business is it to dictate to any woman, to any girl in a crisis pregnancy from a legislative point of view what they should do? I was convulsed, as was the nation, in January with the spectacle of the 14 year old in the X case, a victim being further victimised, being hauled through the courts because her parents wanted to take a certain line of action in the crisis pregnancy of a child. Whose business is it to tell her — to tell all the other X cases that may arise or to tell me or any other woman what we should do? Yes, provide advice, provide all the counselling we need, provide help and support, and have a medical and health system that truly cares and not a two tier system if those who can afford it can hop on the boat and those who cannot have to stay here and put up with the consequences of the interpretation of the amendment we are talking about today.
Let no one decide that this is an absolute issue on moral or legal terms because there are no absolutes in regard to this issue and it has no place in our Constitution. I spoke on 20 February and 4 March last of the probable need for a referendum. In the wake of the X case we all felt we would probably end up having a referendum on the issue of abortion. I hoped the referendum would repeal Article 40.3.3º and that legislation would be put in place. That would have satisfied me. Are we yet to have legislation? According to the Minister for Justice, we are not.
Regardless of the outcome of the three referenda, in relation to the substantive referendum we do need legislation. We need legislation to guide our medical practitioners and our doctors even if the substantive amendment is passed. Surely we are not talking about termination up to eight and a half months in pregnancy. Surely guidelines are necessary in relation to the stage in a pregnancy that termination will be possible in these rare and crisis cases.
The medical profession are asking for direction but the Minister for Justice told us this morning that there would not be legislation.
We need more than guidelines. The medical practitioners here, as I am sure the Minister will appreciate need the protection of legislation in this case and I put it to the Minister that that is the case they have made to him.
The abortion amendment as it has come to be known, Article 40.3.3º, was inserted in our Constitution not because there was any threat in the early eighties of the introduction of legislation in relation to abortion in either Houses of the Oireachtas — I know of no party or individual who proposed legislation to introduce abortion at that time — but because some of us foolishly gave in to pressure coming up to a general election to prevent further generations of legislators being able to consider it an option. It was a dogma to be laid down by this generation for the next rather than allowing society at any stage to control and order its own laws. Effectively, that is what politics is about. Let society at any particular time control and order its own laws through its own legislation. A society must legislate for its own needs and not best guess legislation for the next generation, which is what the Houses of the Oireachtas attempted to do in 1983.
We hear a lot about being pro-life. If we are really pro-life how have we hospital queues and a twotier system for health treatment in our country between the medical cardholder and the private patient? Is it pro-life to have the many prefabricated schools our children at primary and second level have to put up with? Is it pro-life to have no juvenile court system or not to have sufficient paediatric units within easy access particularly in rural areas? Is it pro-life not to have enough third level places for our young people given the importance of education to obtain work? Is it pro-life to have no counselling system for abused children? Is it pro-life that this Government have not fully implemented the Child Care Act? We are a sick society.
My colleague, Senator Manning, referred to the Progressive Democrats. The Minister, Deputy O'Malley — and it is with great disappointment that I say this in this House — apparently was not prepared to forfeit his Ministerial power on behalf of the women of Ireland. So much for high standards in high places.
There were parts of the Minister's speech I found very difficult to understand.
If the Senator wishes to have my speech, she is welcome to it.
I am referring to the speech of the Minister for Justice in opening this debate, lest there be any confusion.
The Minister in his speech said:
There is no warrant whatsoever for any suggestion that the amendment will open the door to abortion. It is most emphatically not an abortion amendment.
We are all talking about very limited direct termination of pregnancy where there is a life threatening situation for the mother. That was the case the Minister had been putting to that point. If you directly terminate a pregnancy, even conditionally or for whatever reason, it is an abortion. It is not opening the doors to abortion as in other countries but there can be no equivocation and it is disingenuous of the Minister to try to state otherwise.
The ideal would be that there would never be need for an abortion. It goes against the grain of all, particularly women, ever to have to consider it but this is not an ideal world. There are real problems and real tragedies and none of us can dictate to others in this situation what is best for them.
Accepting that position as existing in the real world, why is the Minister saying it will not open the door? It will not open the floodgates to abortion on demand but direct termination of pregnancy, even in the very limited number of cases in which it will be allowed under the substantive amendment before us, means that there will be limited abortion in our country. We need legislation for those in the tragic position of having to opt to take this course.
We need legislation and we need the facilities. We need to be told where in this country that facility will be given; we need to be told up to what stage of pregnancy termination in those limited number of cases will be tolerable and we need to know the Government's planning in this whole area and we need to know it fairly quickly.
Over the past couple of months much has been made of incest cases and rape cases. The X case concentrated our thinking on this whole area. In cases of incest and rape, providing they are reported as near immediately as is practicable to general practitioners, within a day or two if at all possible, I have no difficulty regarding consideration of morning after treatment or the morning after pill. I have no difficulty nor have eminent theologians difficulty with that. The vast majority of general practitioners have absolutely no difficulty with that. If one good message can come out of this debate, let it be a plea to those who have been raped, be it inside the family in the case of incest, in under-age relationships in relation to a girl under 16 years of age or the straightforward rape of an older woman of any age, to go for help immediately. There is help available and it does not amount to abortion as far as I am concerned.
The Minister is a medical doctor. It is well known that twinning can occur up to two weeks after conception — there can be a division into two rather than one fertilised egg in the womb. If that is the case there is not a single being in existence if it can suddenly become two. In those very early days, particularly after incest or rape in the various cases I have outlined, help is available that does not amount to abortion and treatment is available immediately. If we can encourage those who have been through the trauma and the tragedy of incest or rape to report to some authority so that they can get medical help immediately, we could save them from further trauma down the line.
I will not attempt to emulate my colleague, Senator Manning, in his review of the behaviour of Minister for Justice, Deputy Flynn, in 1983 other than to say it was an excellent review. Given the Minister's dictatorial attitude now, his know-it-all attitude and the "I cannot be told anything" attitude in this House and in the Dáil last week I am very worried about statements such as "it is not the intention of the amendment to do this, that or the other", "the clear intent of the amendment", "the clear meaning of the words is". We heard all of that in 1983. If there was no intention then and if the clear intent was obvious then, we would not be here today.
The Minister has no monopoly on wisdom in this area, nor has any political party or individual in these Houses. The arrogance with which the Minister, Deputy Flynn approaches this topic — at least the Minister present is a medical doctor — given his views in 1983 worries me considerably. It was not the intention of the amendment in 1983 to put us in the position we find ourselves in today. That was unintentional. That amendment was framed by the pro-life people. It certainly was not their intention that it would have the consequences it subsequently had nor that it would be open to the interpretation subsequently made.
If I may interrupt, that is why there will not be legislation. The guidelines by the Medical Council will suffice.
It would be far better if we did not copperfasten in the Constitution words on which there is great disagreement among legal, medical and theological people at the moment. With respect, this Government have not the monopoly on wisdom, neither had Fine Gael in their Coalition in 1983. We were unhappy then. We knew the wording was not as we had wanted it but, reluctantly, we went along with it at the time. We must accept responsibility for doing so, as this Government will have to take responsibility if they force through the wording on the substantive amendment unchanged. I ask them to look at the case being put. I plead with them particularly to take out the reference to the health of the woman.
The ideal is that no woman would ever need an abortion. If that ideal could be upheld even by enshrining it in the Constitution we would nearly go along with it but we all know that is not how things operate. The debate before us is ideological only. It will not have direction in relation to the individual crisis pregnancy that it is presumed to have. The ideal of no abortion is a moral ideal, like any other virtue. None of the other virtues is enshrined in our Constitution and this ideal has no place there either. To attempt to enshrine the moral ideal of no abortion effectively is theologically daft.
There are neither moral nor legal absolutes on this issue and I urge that we reconsider nailing it down in our Constitution particularly when there is such divisiveness and unease about the actual words being used in the substantive amendment. The divisiveness is there among women's groups, the medical profession, the legal profession and among theologians. All of the thinking public and those who have bothered to consider this important issue find that there are differing divisive views on either side which bear serious consideration and have considerable merit.
I am not comfortable with the Taoiseach, Deputy Reynolds and the Minister for Justice, Deputy Flynn's dogma in relation to the words being put and forced through this House to this substantive amendment. I am particularly unhappy given the dogmatic approach taken by them in 1983. My colleague hoped by way of a prayer that the Minister, Deputy Flynn, may have learned in the past ten years. I hope we have all learned a little through our involvement in political life, in both Houses of the Oireachtas and in life generally.
The importance of the issue before us should allow for genuine consensus rather than the charade that was entered into. It is obvious now in the way this matter is being handled that the Taoiseach never had any intention of changing the wording at any stage of any of the amendments — the substantive one being the only one where a question of change may have arisen in a serious way. To try to get the other parties onside as he did with the Maastricht Treaty was, with the wisdom of the hindsight of only a few weeks, an effort to cover his own political rump against the pro-life and other groups who may have differing views or may differ on certain aspects of what is being done in these Houses. The fact that he was not prepared to consider any change, that he was not even going to listen, that it was a total charade, is really an indictment of the Government and the Taoiseach in the way he handles these matters.
This is a most sensitive, difficult matter. The women of Ireland are extremely annoyed and angry. They are confused and genuinely do not know what is the best thing to do. I and thousands and thousands of others feel abused by this Government with the wording of this substantive amendment and I urge them even at this late stage, to reconsider the reference to women's health.
There will be other occasions for reminding the Government of the damage they have done, particularly to women. I hope to God that litigation is not the path forward but it is the view of those who know far more about this subject than I do that there is only one way out of this if the substantive amendment is passed by way of the referendum and that is through the courts. The medical practioners will have no option but to go straight to the courts. I ask the Minister present, as Minister for Health go back to the Cabinet and review the wording of this substantive amendment if not for the sake of the country then for the sake of the women of Ireland.
I welcome the Minister for Health, Deputy O'Connell, to this very important debate and also express my thanks to the Minister for Justice, Deputy Flynn, for being here earlier to deliver his lengthy and informed speech.
At the outset I must congratulate my colleagues, Senators Manning and Doyle, for two very emotive speeches and certainly if I had their ability in addressing a jury in a criminal trial I would be proud of it. We must bring a balance to the debate.
As somebody who comes from a family of 11 with seven sisters and as a married man, I cannot agree that Senator Doyle speaks for all the women of Ireland when she said they are facing a major problem in this area. If every woman was asked to vote on the substantive amendment, where would they draw the line? I accept there are difficulties and many scenarios have been presented. Do we have abortion on demand, possibly the Sinead O'Connor style of abortion where one uses it as a form of contraception? I find that absolutely abhorrent.
The Senator should refrain from naming people who are not present.
Miss O'Connor is not here to answer for herself.
The Senator may be able to answer for her. That is the type of approach neither this Government nor the people want. There is the in-between position and I would be sympathetic towards that. In the famous X case a young girl was the victim of a rape and there was prolonged High Court action and an appeal to the Supreme Court. There was a lot of sympathy for her and her plight, but do we legislate for it, that is the question?
Senator Doyle referred to incest. There are many grey areas. The Government, in fairness, have not tried to sidestep the issue but over the past number of months, even before the Supreme Court decision in the X case was published, have endeavoured to find a solution. I cannot say that the women in south-west Cork think differently to other women. In the past number of weeks I have listened to young and old and have heard varying views. The general impression I got from speaking to women in particular, from young girls to those aged 50 or more, is that they do not want liberal abortion introduced in this country, if abortion at all.
We are dealing with three amendments of the constitution. There seems to be no great difficulty in relation to the Thirteenth Amendment and the Fourteenth Amendment which refer to the right to travel and the right to information. In the Offences Against The Person Act, 1861, which is still law in this country — it was an old British statute — section 58 prohibited unlawful miscarriage or abortion. It used the word "unlawful". In late 1983 the then Government, headed by Deputy Garret FitzGerald, supported at that stage in Government by Labour, held a referendum on this issue. I was not in public life at that stage but I have always held the view that if it had not been introduced the 1861 Act would have sufficed. However, that is now history——
Is it Government policy?
We should repeal it.
In 1983 the right to life of the unborn was copperfastened in the Constitution under Article 43.3.3º. Following on this in the X case in the Supreme Court, the res judicata opened the doors to abortion in certain situations. The debate at the time was a very difficult one concerning a young girl and it was difficult for the Supreme Court to interpret the Constitution.
On 5 March the Government were presented with a 60 page deliberation by the five judges of the Supreme Court on whether the girl should be allowed travel abroad and have an abortion. The Government set up a committee headed by the Minister for Justice, Deputy Flynn, within five days of this decision.
The Government decided, despite massive pressure from certain groups, that we should not rush into a referendum on the issue of abortion arising out of the decision in the X case. That was a prudent decision. We were about to hold a referendum on the Maastricht Treaty, which was primarily an economic issue, and the Government did not want the abortion issue to adversely affect it, although several groups voted against it for varying reasons. As I said, I think the Government were prudent not to hold an abortion referendum which was what many people wanted at that stage.
There has been criticism that the Government were reluctant to reach a consensus on the wording of the proposed referendum; on the other side of the coin, many groups said the Government were shirking the issue and would never hold a referendum. A commitment was given and a committee was set up and there has been a great deal of dialogue since.
I do not agree with some of the views expressed here that the Government took a rigid, narrow attitude and that in negotiations with other parties, were not open to discussion. If we go back to 9 June, the main parties — Fianna Fáil, Fine Gael, Labour and the Progessive Democrats which represent about 90 per cent of Deputies and Senators — agreed on the right to travel and the right to information. This indicates an openess and a willingness on the part of the Government to discuss the issues. They also agreed, as did the other parties, that a referendum and, if necessary, legislation would be introduced. The Government are now honouring this commitment. In this instance, the Government are getting positive advice from the Attorney General with regard to the wording in question and not as in 1983 when the then Attorney General, Peter Sutherland, advised the Government that that wording could be subject to various legal interpretations. He was subsequently proved right.
The task of the Government in relation to the substantive issue was to try to decipher what precisely the Supreme Court were saying about abortion arising from the X case. The present wording has taken account of all the points raised by the five judges of the Supreme Court and the advice given by medical people and others in different walks of life but it differs in one material way only, that is, it excludes suicide as a ground for the termination of a pregnancy on the grounds that there is no medical evidence to suggest that a woman who is pregnant would have a tendency to commit suicide. A woman who is pregnant has an inbuilt feeling for the child in her womb and is most unlikely to even think about having an abortion. The Government, acting on the best advice available to them, were sensible and prudent.
The essence of the Supreme Court judgment is that in very limited circumstances the termination of a pregnancy is only proper and correct where there is a real and substantial risk to the life of the mother as distinct from the health of the mother. Many people have claimed that this phrase discriminates against the mother. I do not accept this. A test case, the Bourne case, in the British Court of Appeal on the grounds of health, opened the floodgates. However, in Britain and in some states in the United States of America, the tide has turned. The legislation introduced some years ago has proved to be too liberal and ineffective. In many cases efforts are being made to roll back the tide, reducing the time limit for abortion from 18 weeks to 12 weeks and so on. They would dearly love to roll back the tide and reverse the tragic legislation in certain states in America where they have abortion on demand. I do not think this country wants or needs that.
I am not saying anybody in this House is anti-life or anti-women's health. The Government have a duty to legislate and to deal with constitutional issues that arise, in this instance, by three referenda. The Government do not want abortion on demand. They are pro-life. In this context I know that pro-life group are not totally in agreement with the proposal by the Government. This Government favour the protection of the mother. Having taken into account expert medical advice, detailed consultations with many representative groups and discussions with all the major parties, the Government are striving for a fair balance that will be acceptable to the people.
It is the essence of democracy to put this issue to the people. It was originally a constitutional issue, not of this Government's making. We cannot be held responsible for the 1983 referendum. We cannot be held responsible for the X case, for the Supreme Court decision and for the loopholes that arose from that. The Government are now endeavouring to deal with a constitutional issue and, in my view, we have no choice but to propose this Bill for the referendum in December.
On the one hand we are castigated by a section of people who feel we are being too conservative. In my view, one of the strongest lobbies in this country, the pro-life lobby, should be grateful the Government are honouring a commitment publicly given last April or May. Despite the fact that one element are saying we are too conservative and another that we are too liberal, we are still trying to find common ground. We have not tried to appease the people who have liberal views, who would like abortion in Ireland in the same fashion as it is in Britain and America and we seem unable to appease the pro-life people on the right wing or whatever one wishes to call them.
The Government's proposals should satisfy fully the concerns of all those who wish the law of the land to protect the life of the unborn. It amazes me that one group show imprudent resistance to the Government's proposal, which is reasonable having regard to all the circumstances. It is important to point out — and the Minister in his opening speech did point it out — that this proposed referendum will not eliminate what is there already in Article 40.3.3º. It does not obliterate the statute law of the Offences Against the Person Act, 1861, which sets out clearly that in certain instances the termination of pregnancy or miscarriage is unlawful.
I wish to refer to existing medical practice in this country. I would like to compliment the medical profession here. I have four children and I am aware of the problem of traumatic births etc. Where a doctor or obstetrician was confronted in a maternity ward with a difficult case concerning the life of the mother or that of the unborn child, I always hold the view that it was morally and legally correct that the mother's life would be saved. If I as a father or a husband were asked the question,"What would you do in this situation? Do you want the life of your wife to be saved or that of the child?" I certainly would opt for the mother's life.
It is vitally important to clarify the position arising from the X case in the Supreme Court. Many people are forgetting that arising out of that decision, which was published on 5 March, abortion was legally permissible in Ireland in very unclear and undefined circumstances. Many legal experts and lawyers like myself interpreted the Supreme Court decision as allowing abortion per se without reference to the health or life of the mother and without any guidelines, legal or otherwise. In the X case the Supreme Court laid down the test as “a real and substantial risk to the mother's life arising as a matter of probability.” This is not something the Government made up as they went along. It would be foolhardy and very improper of the Government to cast aside or ignore the deliberation of the Supreme Court. The Supreme Court are, in essence, the guardians of the Constitution. They are the highest court of this land and they are the people to interpret the Constitution.
Much criticism has been levelled at the Government, the Minister for Health and the Minister for Justice for including in this Twelfth Amendment the words "as distinct from the health". If these words were not included it would fly in the face of the Supreme Court judgment. The interpretation of the Government and of the Attorney General was that this was the test laid down by the Supreme Court. I already referred to the famous Bourne case in England where a very liberal interpretation was made. In my view that opened the floodgates. The amendment as it stands provides for all necessary treatment for an expectant mother even if it results in the termination of the life of an unborn child. The life of a mother is paramount.
Referring again to some of Senator Doyle's comments, it amazes me that some people stand up and say they speak for all women. I think this proposed referendum upholds the paramount right to life of the mother at all stages. In other words, medical intervention will be allowed in all situations where it is necessary to save the mother's life because of a threatening physical and medical condition.
The Twelfth Amendment of the Constitution is an attempt to strike and maintain a proper balance in this debate and it is in the interest of the common good and of the public that this referendum be held. I cannot predict the outcome of the referendum. Indeed, to advert to another point raised, I cannot say that five, ten or 12 years down the road this amendment will not be challenged in the Supreme Court; that option is always open. I think the people who framed the 1983 referendum were well intentioned. They were copperfastening what they felt was an inadequate law arising out of the 1861 Act. It was not then envisaged by many people that this would be challenged in the Supreme Court, but it did happen.
It was envisaged by many people.
The vast majority did not envisage it. I do not have a crystal ball, but for this Government to walk away from the X case without bringing this matter democratically before the people, as is now proposed, in my view would be shirking the issue.
I want to deal with the two other outstanding issues, the right to travel and the right to information. I do not intend to labour this, but it appears that the vast majority of the other parties agree — and it is also obvious under existing EC law and decisions — that there is a right to travel, particularly in view of the Maastricht Treaty if it is eventually agreed. In essence what the Government are doing here is enshrining in the Constitution a right to travel. They recognise that the right to travel is inevitable.
Let us look at the history of it. In December 1991 Protocol No. 17 was added to the Treaty. Under EC law the Treaty would take precedence over the laws of our land and the provisions in our Constitution. Subsequent to that and arising out of the X case, there was a Solemn Declaration entered into, which I am certain will be honoured once the Maastricht Treaty is put in place. In effect, it means that if the people vote in favour of these referenda and they become enshrined in our Constitution, the European Community and the European Court will respect the Protocol and the subsequent Solemn Declaration.
The Fourteenth Amendment acknowledges that there is a right to information for people who travel abroad. There are two aspects to this type of information, one of which in time may have to be dealt with by legislation. There is the question of directive information where somebody may be steered towards particular clinics abroad or pressure from abortion clinics in Britain or elsewhere may be used. The other type of information concerns the medical people — doctors, consultants and advisers — who would counsel and advise broadly on all the options open to a woman in distress where she may be contemplating abortion.
A decision is soon to be published by the European Court in the case known as the Well Woman case. It is not for me to presume what this decision will be, save to say that, in conjunction with all the other major parties, it was decided last June that the question of information would also be dealt with in these referenda. I do not think it is envisaged by the Government or by most Members of the Dáil and Seanad that we should have the massive billboards advertising abortion clincis, etc. or letters and pamphlets through our letterboxes directing and possibly canvassing support for certain abortion clinics. I concur with remarks made by Senator Doyle when she complimented the excellent medical and counselling facilities we have here. I feel that is the direction to take. We need more counselling. There are many good organisations providing help for people in distress.
In conclusion, I must express some sympathy with the Minister for Justice, Deputy Flynn, the Minister for Health, Deputy O'Connell and the Government in this most difficult situation. Since this debate began many months ago, whichever way the Government turned there was criticism. I commend these Bills to the House on the basis that by and large what we have now come up with, particularly the wording on the substantive issue, is the most sensible approach having regard to the Supreme Court decision of 5 March 1992. Do we ignore the Supreme Court? We should not. No doubt there will be criticism from speakers across the House; some of them are looking for a very liberal approach — perhaps abortion at will or whenever it suits people. Alternatively, there is the other wing, particularly the pro-life group, who feel that we are too liberal. Where does one draw the line? The line has been drawn by the Government. They have put their cards on the table. I feel it is a sensible approach and the right direction to take.
I am glad to hear Senator O'Donovan expressing as his personal opinion that it was a mistake to have put the so-called pro-life amendment into the Constitution in 1983. He did not remind us that the wording which gave rise to so much trouble was a Fianna Fáil wording. I am equally surprised that he does not now see that putting another complicated wording into the Constitution is bound to dig the hole deeper. At least there is the beginning of a realisation there that the Constitution is not the appropriate medium to deal with these matters.
All of us are aware that in dealing with this issue there is widespread dissatisfaction in the country at large that so much time seems to be taken up with this matter. We are told, for example, that the media concentration does not correspond to the scale of priorities in the country at large and that people are fundamentally concerned with matters which touch their lives more intimately and daily than does abortion and that this is a distraction from issues such as unemployment. That may well be true but let no one underestimate the profund social significance of an issue like this in Irish history and in Irish politics. In other words, this is not a waste of time; it is not a distraction. It is a problem which demands a mature approach and which tests us all.
A competent Government should be able to deal at the same time with issues such as unemployment and the economy on the one hand and socio-sexual issues, such as abortion, on the other. It should not be too much beyond the competence of any decent Government to handle these different matters. After all, it is to be assumed that the Government are not in the same category as a former American President who, it was widely said, could not handle two simple functions at the same time.
I make no apology for the importance of this issue, that is not to say that I approach this with any great enthusiam. I do not subscribe to the view that this is a matter on which men should keep their mouths shut, but it is nonetheless a matter in which I would prefer to have this particular chalice pass from me if only because of the intensity of indoctrination to which I was subjected in my youth on these and related matters. I have, I hope, liberated myself from such indoctrination in other areas. Abortion is a peculiarly contentious and difficult area because it involves the beginnings of human life in a way that contraception hopes to avoid, as it were. If I had a conscience, which is at this stage an increasingly elastic organ, it would not in the slightest be troubled by contraceptive issues but I confess to a profound unease in approaching this issue of abortion.
I find two extremes of views unacceptable. I do not believe that abortion is about a woman's right to choose. I do not believe that what happens to life within the womb is the exclusive concern of the woman who is carrying that life because it concerns society at large. On the other hand, those who proclaim that from the moment of conception to the moment of birth the embryo or foetus has the same value that it has in later months are talking nonsense. I cannot accept that the fertilised ovum has the same rights as a foetus in the later stage of development. That is repugnant to right reason — to use a phrase we were taught scholastically. It is equally repugnant to right reason, in my reasoning anyway, that a foetus at any stage has the same rights as a mature person.
While I cannot accept the extremities of the pro-choice situation, I certainly cannot accept the simplicities of the so-called pro-life stances, as if all of us were not pro-life. The coinage of the word "unborn" as a noun, which first appeared in the 1983 Amendment, compounds that confusion by somehow suggesting that there is an entity called the unborn which is entitled to full human rights as it were from the very moment of conception.
The fact is that all this is a very grey area. Yesterday, in conversation with a professor of physiology in a certain southern university, I heard the phrase "a 90 per cent grey area." When talking about the uncertainties of the early stages of pregnancy the opinion was there expressed that nature herself is the most profligate abortionist. Consider that and the implications of it. The uncertainties of human life in the immediate period after conception are such that it is true to say that nature herself is the most profligate abortionist. I cannot speak for God's intentions in this regard because I have not been communicated with on that score, but it is obvious, as Professor Turlough Fitzgerald said in an article in The Irish Times on 9 October, that “nature is quite cavalier in dealing with malformed conceptuses.”
This is what is behind the views increasingly expressed by moral theologians, such as Fr. Raphael Gallagher in an interview in last Sunday's This Week— the views that you cannot really speak about abortion in the same terms of moral disapproval at that early period as you can later on. That is why there is some sense in the point of view of the Church of Ireland bishops that there should be a cut-off point beyond which the law would not allow the termination of pregnancy. There is this increasing view among Catholic moral theologians that termination is quite different from abortion in the later stages. The simplicities of the pro-life stance make no provision for the complexity of that view.
It is against that background that we have to consider our personal attitudes to the issue and our attitudes as politicians. If you believe dogmatically and unshakeably that every fertilised ovum has a divine destiny, then the issue becomes absolutely simple for you and you proceed accordingly. But that is not the position that can be taken up by the legislator who has to look beyond particular doctrinal views.
One of the things I find inconsistent, to say the least, is the attitude of what you might call middle of the road pro-life people; and I would classify our colleague, Senator Desmond Hanafin and Professor William Binchy in that category, compared at least to other vociferous exponents of the pro-life view. One inconsistency I find is that if they really believe that human life is absolutely sacred from the moment of conception, then logically they should be totally opposed to the other two amendments now being proposed — travel and information. In varying degrees they have reservations about information but, surprisingly, a number of them blithely accept the right to travel while being totally opposed to abortion. Logically, if they regard human life as sacrosant from the moment of conception, then they should be parading at airports, throwing themselves beseechingly at the feet of pregnant women, if not going around with pregnancy detecting geiger-counters. It is beyond my understanding how they can blandly accept that it is all right for people to travel, because this is what they are saying; they might say "it would be counter-productive to try to stop them," but they are in fact accepting that outside the jurisdiction this heinous crime does not any longer become a crime. Otherwise they would be pressing, as I say, for the detention of these pregnant woman, or at least their prosecution on their return home.
Some of them have the logical courage of their convictions, I have to say. Youth Defence, I understand, would be totally opposed to the freedom to travel to have abortions and Fr. Denis Faul, in a letter to The Irish Times, has pleaded with the electorate in the South to oppose the travel and information amendments. If Fr. Faul had his way the term “confinement” would have an additional and sinister meaning. Fr. Faul lives outside the jurisdiction and his observations are by no means helpful; we may thank our lucky stars that Fr. Faul does not control our destinies. Before I leave this point, I have to say I have a residual interest in the theology, in salvation theology.
Would the Senator please refrain from mentioning people's names? They are not here to defend themselves.
I have no intention, Sir, of refraining from mentioning names of people in public life who mix it in the public forum and who are therefore subject to fair comment.
I must say it is a standing practice of the House.
It is nowhere in the Standing Orders.
It is a standing practice of the House.
You are in the Chair, Sir. If you wish to press the matter, I am at your mercy.
I have more time for the Fr. Fauls of this world than I have for the Senator Hanafins, who simply do not want it in their front yard; NIMBY, I understand, is the acronym for "not in my backyard"; but what Senator Hanafin, Professor Binchy and others are saying is "not in my front yard"— NIMFY. It is the same mentality, writ large, which we saw in the case of the riots that attended the first production of The Playboy of the Western World, O'Casey's Plough and the Stars and so on. The fact that our native and sacred soil should be defiled by these abominations is absolutely unacceptable.
Are we not the insula sancta, as Frederick Engels wrote in some exasperation to Karl Marx about the Irish attitude towards various issues — the sacred island which must on no account be mixed up with the sinful goings on in the outside world? It is exactly the same syndrome we are witnessing now in this inconsistent, if not hypocritical, attitude on the part of certain pro-life spokesmen, blandly accepting the right to travel but maintaining a rigid stance about abortion at home.
Another gentleman outside the jurisdiction who is not here to answer for himself and mention of whom may well result in my being expelled from the House is Pope John Paul II. Would the Chair like to rule on that one? The Chair has too high a regard for his own eternal destinty to do so.
Pope John Paul II's intervention in this debate is highly relevant to our concerns here. Within a few days the Catholic bishops are going to make a definitive pronouncement on their attitude to the referenda in which they will certaintly be influenced by the Pope's quite unambiguous injunction to them during their recent ad limina visit, that they must do what they can to make sure the laws and the Constitution of this country enshrine anti-abortion principles. That will be much in their mind. We all know how the Pope regards today's great issues of morality and the part that this country should play and so on.
If the Pope had any sense he would not make that particular plea. One may believe the Pope is infallible speaking ex cathedra but there has never been any pronouncement that he is infallible in matters requiring cop-on and savvy. If he had any sense in this regard he would learn from the lessons of history but then, of course, we know from Hegel that the only thing people learn from history is that no one learns anything from history.
The Pope's predecessors did not distinguish themselves in their pronouncements on this country and its political issues. Hadrian IV and the 12th century Popes regarded our ancestors as too barbaric to look after their own souls and ruled that they should be committed to the rulers of the neighbouring island. Not long ago in historical terms, a hundred years ago during the Plan of Campaign, Pope Leo XIII issued a rescript condemning the activities of the tenant farmers and it was met with a big wave of anti-papal feeling in this country. Let no one think that we will accept everything that comes from Rome. During that anti-papal tide of feeling here in the late 1880s, graffiti was observed in Dublin such as "Ireland for the Irish" and "no Italian organ grinders." That sums up my attitude towards Pope John Paul II's intervention in our present affairs.
The bishops are about to pronounce shortly on this matter. Strictly speaking, their pronouncement should not be part of our debate at all but everyone knows it is. What they have to say is being awaited with bated breath, etc, etc. Already Cardinal Daly has laid down the line by saying that what is put into law affects people's attitudes to moral issues. He has said, in effect, that people's moral attitudes are affected by legal facts and the legal position. I regard this as a highly insulting pronouncement. It does not express much confidence in the teachings of his own Church if he cannot rely confidently on the moral convictions of 98 per cent of the population.
I may have misheard the Senator and, if so, I apologise to him but I got the impression he compared the comments of Pope Paul, with which we may agree or disagree, with those of an Italian organ grinder. The Pope is a head of State and head of a religious community and this seems inappropriate. Perhaps I misunderstood the Senator.
I will take up the matter in private dialogue with Senator Conroy subsequently. I was quoting from a graffiti of the time.
The remark should be withdrawn if it was uttered.
My intention was quite clear. It is gratuitously insulting and paternalistic for the Cardinal to imply that people cannot behave themselves unless they are brought to book by the law so to speak, and that a change in law implies a change in their moral attitudes.
What should concern us here is this that on 22 August 1983 the Roman Catholic Bishops gave it as their considered opinion that the amendment then brought up by Fianna Fáil was a good one that would satisfy all the requirements and not give rise to any trouble. They rejected out of hand the reservations expressed by the then Attorney General and by the Director of Public Prosecutions about what that referendum amendment would entail if it were challenged in the courts. But no, the bishops, departing from their lawful and legitimate pulpits, ventured into the realm of constitutional law and assured the faithful that the 1983 amendment would ensure maximum protection for the right to life. Moreover, they admitted there was some difference of opinion about this matter but if the people voted in sufficiently large numbers these reservations would be laid to rest; an extraordinary kind of logic. A fair inference — and one made by a moderate man such as Deputy Garret FitzGerald — is that the bishops took their stance in 1983 because they were afraid of being called "soft" by crawthumpers. I hope they will not make the same mistake again.
Regardless of why they took that stance, the point is that the Holy Spirit was conspicuously absent from their deliberations at that time. If he had been present then surely they would have been safeguarded from giving wrong advice to the electorate. Therefore, it is reasonable to conclude that what their lordships have to say next Monday will, again, not be safeguarded by the assured attendance and inspiration of the Holy Spirit. I could claim that because I had certain insights and foresights before the post-Vatican II changes, the Holy Spirit resides as much with me as he does in Maynooth.
I am not sure the Holy Spirit has anything to do with this debate.
The Holy Spirit has everything to do with this debate considering the way in which politicans have hopped and jumped every time the bishops lifted a crozier, not to speak of lifting a finger. The bishops in terms of telling people what to do in this referendum have revealed themselves by their own words in 1983, given what happened afterwards, as false prophets. This is outside their proper sphere. Ne sutor ultra crepidam. If there is a single bishop left who understands Latin, that means the shoemaker should stick to his last and their last is the pulpit and the sanctuary.
Fr. Raphael Gallagher, head of the Redemptorist Order and others have hinted that the Church is taking the wrong tack here and that instead of laying down the law institutionally they should be joining as equal and humble participants in the debate. Even more interesting is the publication earlier this year by Fr. Patrick Hannon, Professor of Moral Theology at Maynooth; a book called Church-State Morality and the Law. The Chair of Moral Theology in Maynooth is a special kind of Chair; it is where the real expert in matters of sexual and socio-sexual morality resides. Fr. Hannon says in that book that politicans and voters have every right to make a distinction between their own personal views on abortion and how they should legislate and vote for the common good.
That is a most valid distinction where the locus classicus is the United States of America; there Geraldine Ferraro and Mario Cuomo have fallen foul of Cardinal O'Connor for maintaining this distinction. As Catholics they said they found abortion abhorrent but as legislators they regarded it as their duty to the public good to promote abortion since they were legislating for all of the people and not for Catholics only. Mario Cuomo claimed that as a legislator he has a right to promote the idea of state funded abortion services. These valid distinctions are light years from the simplistic darkness in which we have been paternalistically kept. I do not know if our politicians will observe these distinctions.
I find extremist views among the prochoice lobby almost equally unacceptable and I am greatly impressed by the comprehensive case made by a body called Frontline. In a recent publication which all of us received dealing with crisis pregnancies, Frontline have laid it on the line that we should be talking about the provision of a whole spectrum of health, welfare and counselling services and contraceptive information and not making doctrinaire pronouncements on abortion in a vacuum. They draw our attention to the fact that where adequate information, counselling and contraceptive services are available, the rate of abortion is likely to fall. The most striking example here which was quoted by the Minister of State, Deputy Harney, in the Dáil is that we compare very unfavourably with Holland in the rate of abortions per child bearing woman. Undoubtedly the reason for the difference is the widespread availability in Holland not simply of contraception in its various forms but of a compassionate view towards crisis pregnancies which has been sadly lacking in this country, despite our hypocritical professions. I have been greatly impressed by that.
It was interesting to observe that, according to a survey featured a week ago, 19 October 1992, in The Irish Times which was published by the United States population crisis centre in Washington, Ireland ranked last among the world's 29 developed countries in access to birth control. Does anyone deny that that fact is linked to our scandalous record of compelling women to go in their thousands every year out of sight, out of mind, away from our front yard? Does anyone deny that the low level of servicing in the sphere of information about population and birth control is linked to that sad fact? Also linked to it are the categories of class and poverty.
Does anyone in this House doubt that a well heeled woman can resolve her crisis pregnancy far better than her poorer sister? Where she has to take the ultimate step of securing an abortion, does anyone doubt that she can buy that abortion more easily and that she will have the necessary services made available to her if not at home — and I am not convinced that they are not available to her at home — then in extreme comfort in England? How can we square our conscience with the spectacle of poor, frightened, under-privileged, ignorant women having to take Slattery's night bus across the Irish Sea for an abortion? That spectacle is contemplated with equanimity by our friends on the so-called pro-life benches.
I regard the information amendment as a total nonsense. It is absolutely unsupportable and appalling that so-called eminences in the Supreme Court should have lent their distinction to an appalling pretence that we can or should suppress information on abortion in the form of telephone numbers, addresses and so on. In what kind of wonderland do we think we are living if we waste our time discussing this nonsense?
I regard the amendment on travel as dishonest. Who is denying the right to travel? Why should it be necessary to put into the Constitution that I have a right to travel? The subsection reads: "shall not limit freedom to travel between this State and another State". No one has ever challenged my right to travel. Why should that be put to a constitutional referendum? If we are honest we would add the words "for the purposes of securing an abortion"; if we were honest — and I am anticipating what I am going to say on the Referendum (No.2) Bill — the Short Title to the substantive amendment would be "Abortion (Domestic) Amendment" and to the travel "Abortion (Abroad) Amendment". That is what it really means.
Finally, Senator Doyle expressed better than I could — and it is not for a man to do this — the appalling feeling of indignation on the part of many women that their lives and health are being trivialised in this amendment. We seem to have forgotten all the compassion we experienced when we first debated the "X" case. In this House I was not the only one who said that if the child in question had been mine I would have encouraged her to have an abortion. I hope that in time to come in that extreme case she would be able to have an abortion in Ireland and not have to go in fear and trembling and shame outside this jurisdiction.
I regard the amendments on travel and information as beneath contempt; they are Mickey Mouse amendments. I am opposed to the substantive amendment because of the refusal by Government to take women's health and the suicide risk seriously. As Tony Clare said in an article in The Irish Times, it is as if psychiatrists are not real doctors and mental ill health is not really being ill at all. I will be supporting an amendment proposing that we get out of this dreadful mess and not dig ourselves deeper into the hole by, at this late stage, asking people to have a bit of sense and repeal what Senator O'Donovan said should never have been put into the Constitution, the Eighth Amendment in 1983.
I am prepared to concede to the Government that this is a difficult issue to deal with; everywhere in the world it causes deep feeling and anguish. There is this much to be said for the Government, they have not on this occasion pandered as much as they did in 1983 to crawthumpers, whether lay or clerical.
In spite of what Senator O'Donovan said, Fianna Fáil have only themselves to blame. They played cynical and opportunist politics with the referendum in 1983 to discredit, outface and score points over the Government then in power. Now, this matter has come home to roost. In the end, I wonder if we will ever get out of the state of moral childhood. We have had one issue after another, all related to the sexual dimension with which we should about now be coming to terms. We need to deliver ourselves from the state of moral childhood in which we have languished for far too long.
I have been fascinated by much of what Senator Murphy had to say. It is ironic that in his last few words in relation to the two other amendments he described them as "Mickey Mouse amendments. I welcome the referenda on those two issues because there is a broad political consensus on them and they comprise two basic civil rights. It says a great deal about our society that we have been obliged to enshrine them in the Constitution. At least we are facing up to the challenge presented to us by the X case in those areas.
The right to travel, to move outside our borders and to avail of services that are legal in other jurisdictions, is self-evident to most people now and reflects the compassion and sense of justice which was awakened in us all last February. We examined our attitudes then and decided that our society could not and should not be a totalitarian one, where either the legal guardians of the State or its self-appointed moral guardians could, in effect, imprison someone in their own land. We must reject what might, carried to the extreme, lead to a morality passport being required in order to travel outside the country. I hope and believe that referendum will be passed.
I hope the referendum on information will be passed. I cannot agree with the attitude that we should not tell people anything about abortion, as if refusing to give information affords some kind of protection, that if we ignore the problem it might go away. We know abortions happen. At least 5,000 women go to England annually from Ireland for an abortion with no access to counselling. Many are unable or afraid to ask for information; they may be frightened and distressed. Many of these women might take a different decision if appropriate information and counselling were available to them. Many, of course, would be confirmed in their decision. I abhor the necessity to go to England for abortion but with information they would know something of what they are about to face. At the very least they could have a letter of support from their own doctor. Anybody undergoing any kind of medical operation deserves the best medical opinion and the best information and women who feel they have to have an abortion should feel as medically safe as possible.
The decision for abortion many women take is often born of ignorance and fear. That fear does not prevent them from having abortions but it makes the experience more traumatic and potentially more dangerous. Why should we allow women in particular circumstances to be denied the information they so desperately need? Information on all available options, counselling and support should, of course, be a right; it would allow women the dignity of being treated as mature human beings and not as overgrown children being protected for their own good. I am anxious that women be given the full dignity which up to now they have been denied.
I turn now to the so-called substantive issue, the issue of abortion. I said from the outset of the whole debate that this matter would be better dealt with by legislation. I disagree with what the Minister said this morning on this. Abortion is a complex issue that cannot be accommodated by a stark sentence in the Constitution. Ideally, we should have political consensus and show courage and leadership by taking responsibility in the Oireachtas. I believe that I am not expressing my own view only but that I reflect the view of many women. Women Members of the Oireachtas are uniquely able to do this.
Women will say things to one another that they would never say to a man; and that is as true of male Members of the Oireachtas as it is of men anywhere. After a couple of weeks of debate we are encountering the type of divisiveness we all feared. People are taking up simplistic stances and this leads to labelling of others and even to cases of violence. Our worst fears in that regard have come to pass already and I say that with the utmost sadness. My argument for legislation has more to do with the complexities involved; I am not afraid of divisiveness or against matters being thrashed out in the public arena. This complex matter deserves more than just those few stark words.
What about the wording? I do not, unlike others, cast doubts on the bona fides of the Minister because at least now we have an acknowledgement of the need to protect the lives of mothers. Some Members of the Oireachtas have said to me that had they been asked five years ago to decide between the life of the mother and that of the foetus they would have decided in favour of the foetus. In fairness, there has been a subtle change of opinion and there may now be greater regard for the rights of women.
When I examine the wording of the amendment on the substantive issue I am reminded again of last February when along with almost everyone in the country I was shaken to the core because the unthinkable had happened. At that time, like so many parents, I looked at my own young girls and asked myself "What if it had been one of them?" That is an emotional response but an understandable one that cuts through all of the abstracts, jargon and legislative framework. We each are faced with the question of how, as a loving parent, could I allow my child to suffer.
When I look at the wording which distinguishes between the life as distinct from the health of a mother, I consider it, as a mother and wonder how much a woman should have to suffer. Will we be perpetuating the present situation where a young woman I knew was denied intervention or any alternative to carrying her baby to full term when threatened by hypertension during pregnancy? Now she lies, as she has lain for the last four years, in a coma. Under the terms of this amendment would that situation still obtain? Her health rather than her life was threatened. She is still alive but what kind of life is that for her and for her family?
Many women are fearful. I listened carefully to the Minister's assurances here this morning. I did not feel he was insincere in what he said but there are many other examples of why women have every right to be fearful.
What about the threat of suicide? Seemingly that is not a genuine life threatening situation now, even though it was last February. I have been distressed by the comments made by a number of people on this matter. It seems we are wiping away our memory here and forgetting that when suicide is threatened psychiatrists and psychologists can detect when someone is truly desperate. Of course, suicidal people should be helped and counselled and in most cases it should be possible to bring a woman through her trauma but how can one be absolute about this? That is like trying to play God. How can one allow for the depths of despair that drive people to this ultimate solution? I do not know how one can do that.
Everything I say and feel about these referenda must be coloured by the fact that I am a woman and a mother. I have often been to management conferences and heard about the difference between being involved and committed. According to an old story a chicken and a pig are walking down the road and they say, "Well, should we have breakfast?" One of them says, "What will we have?" The chicken says, "We will have a rasher and an egg." The pig says "That is a breakfast you are involved in but I sure as hell am committed to it." That is the difference, that is why women must be listened to. I am not denying that men are involved and concerned but they are not as committed as women.
There is an intrinsic difference between my feelings and thoughts and that of any man. That distinction means there are places I cannot go, or am not allowed to go, and things I cannot do or I am not allowed to do. It hurts any parent when they have to give instructions to their child lest any harm befall them, and that is just as true for boys as it is for girls. Every parent is aware of the greater vulnerability of girls. There is another issue which has more to do with the fundamnetal attitudes in society towards women and girls and their value in that society.
The X case forced us, very unwillingly, to examine our attitude to the rape of a child. Many people who until then would have said they were against abortion realised that they could not depend on such an absolute because there is always a but. Who could condone abortion as a type of delayed contraception? That is not an issue, and it should never be an issue, but who has the right to say that, in the case of rape, a victim particularly if that victim is a child, must be forced to bear that child? One cannot be absolute about that either. Everyone's natural reaction is to protect the child and to try to alleviate their trauma, not add to it.
Recently I saw on television where members of a family went public about their horrendous experience of being abused in childhood. How bad does the quality of life have to be before we find an appropriate and caring response? That is the trap we fell into last February when we were forced to face up to a situation that people assured us would never happen.
This debate has brought to light many questions about our society. I emphasise again that I do not doubt the sincerity of men who see it as their duty to protect women, but there is a danger that what is actually happening is a paternalistic and traditionalist approach which does not allow women the respect and dignity to make right decisions.
The Minister referred this morning to people standing on either side of this debate. I do not believe in extremes and most women will not stand on either side of this debate because they are directly involved in it. It is inappropriate for anyone to infer that if, in exceptional circumstances, abortion is carried out to protect the physical or mental health of a woman, the next thing we will have is abortion on demand. This has not been the experience in many countries. I agree that suicide in pregnancy is very rare and I am glad that is so but have we forgotten that the Supreme Court judged that in the X case there was a real and substantial risk to the mother and if that happened, why are we turning our backs on that decision? The common denominator in the X case judgment was not the life as distinct from the health of the young girl involved. I believe this has been lost sight of.
I want to refer to remarks I made a couple of weeks ago about listening to women and to their very real fears. It is very important to reassure women — the Minister tried to reassure them earlier today — but I do not believe they feel reassured because all the messages going out from the debates in both Houses emphasise the predominant role of men at all levels of society. Senator Murphy mentioned a man outside this jurisdiction who has already participated in the debate.
The lesson to be learned from all this is that if there were more women involved at all levels of society, our focus on child bearing might be very different, we might never have got ourselves into this mess, we might have proper access to birth control, family planning and child care, we might have a better attitude to crisis pregnancy and there might be less emphasis on women as reproductive beings.
In a way we are all prisoners of our past and for that reason I am not in favour of the introduction of abortion on a broad basis; I am not in favour of abortion on demand and I have no hidden agenda for its introduction. However, it is impossible to take absolute positions on the prohibition of abortion.
The reality is that abortion has always been practised in this country when medical circumstances indicated it was necessary to protect the life or health of the mother. In disorders, such as ectopic pregnancy, abortion was used as a means of protecting the life and health of mothers, even if the emphasis was on the fact that the abortion was an unfortunate side effect of the treatment of the mother. In most of those cases I suspect there was a careful avoidance of the use of the word "abortion" which, of course, in reality was what happened. It must be recognised that in some medical circumstances if there is no intervention, the life of both the mother and child will be lost, in other words, two lives would be lost instead of one.
The present arguments arise from the 1983 referendum. In that referendum, the advocates of its approval were full of certainty and they saw fit to cast all sorts of aspersions on those who disagreed with them. Some of these people are still around apparently having learned nothing from their mistakes, still full of certainty and having no hesitation in moralising about what is right and what is wrong. They are at least consistent in that they still know best, notwithstanding their past blunders.
We are now presented with another form of words which this Government believe will solve the dilemma. They believe that the immensely complex dilemmas relating to the lives of mothers and the foetus can be resolved for all possibilities in less than 100 words. I do not believe this is so. In any case, the final arbitrator in these matters will be the Supreme Court. At the end of the day, it is the opinion of the Supreme Court that will count, and there is no easy way of predicting the judgments it will produce.
It seems certain that none of the advocates of the 1983 referendum anticipated the judgment of the Supreme Court in the X case. It is for those reasons that I find it very difficult to attach much weight to the very well written, the very well delivered opinions, by the Minister this afternoon. In the heel of the hunt, they will not count; what will count is what the Supreme Court will determine.
I do not think it is possible to draw a clear distinction between risk to life and risk to health notwithstanding what the Minister said. I do not think these distinctions should be made in the first place. It is unacceptable that medical intervention is allowed if the life of the mother is at risk but not if the health of the mother could be damaged or put at risk. I find those distinctions unacceptable and I believe they will prove to be untenable. They are a good recipe for more Supreme Court cases.
I believe distinctions between risk to life and health as a basis on which medical treatments are to be offered would be unacceptable if they related to men, to non-pregnant women or in other medical eventualities.
It is difficult to understand the basis for the exclusion of suicide as a ground for abortion while other risks to life are acceptable. People do commit suicide both when pregnant and not pregnant. I do not dispute there may be difficulties in assessing the risk to suicide. However, the assessment or risk to life from other disorders during pregnancy in many cases will be very difficult. The assessment of risk to life and risk to health, etc., is a difficult and complex area.
The one thing that is not guaranteed is certainty. This country is full of stories about people who were given a very poor prognosis because of their medical condition but who subsequently proved the prognosis wrong. There is always an element of uncertainty in this matter and I do not understand why the Government appear to have so little confidence in the judgment of psychiatrists and to have so much confidence in the judgment of experts in other areas of medicine.
I believe the Government should have legislated to deal with this problem. I still believe legislation will be necessary, whatever happens in the referendum. I do not believe we will see this legislation in the lifetime of this Government, no matter how long or short that turns out to be.
In 1983 the debate on this issue concentrated the minds of most people. Almost everybody seemed to be concerned about the issue and its outcome. As far as I can see, the same is no longer true. For many of the public the subject is now a turn-off. They have just about had all they can take of reproductive physiology and its disorders. Even some of the most committed of the opinion leaders are getting this message from the public. Times change and in any case there is only a certain level of exposure to any topic which the public can take.
Those who pushed for the introduction of the referendum in 1983 did so on the basis that the public could no longer trust politicians. They had their way and they discovered in reality, on their terms, that they could not trust the Supreme Court to give them the result they wanted in all circumstances. In 1983, those who did not trust the politicians found that on the ground they could do business with Fianna Fáil. Fianna Fáil have failed to deliver the goods for them on this occasion. The question now arises: where do these people go from here? If they cannot trust the politicians, will they set up their own political party to contest elections or will they engage in more joint ventures with politicians they say cannot be trusted but with whom deals can be arranged on the ground?
The Labour Party in the early eighties opposed the referendum which was finally put to the people in 1983. They received very little thanks at the time. The last referendum did not do the job its proponents claimed it would do. I believe, this referendum, will not resolve the problems that relate to abortion. The dilemmas created by abortion are universal. They endure in the most developed and sophisticated societies. We would be fooling ourselves if we accepted that these difficulties could be resolved conclusively in this country or anywhere else in the course of one refendum which has, in all, a total of 54 words as far as the substantive issue is concerned.
It appears there is nearly universal agreement in relation to the provisions in regard to travel and information. I do not have any particular problem with those but I agree with what Senator Murphy said in relation to the inconsistencies in the position which is taken up by the pro-life people in this country in regard to those matters. I cannot understand how they can reconcile their position in relation to the availability of travel and information when they are opposed to abortion in pretty well all circumstances. I cannot understand how they find it permissible for people to go to England to have abortions but not for them to have the same treatment in this country. I cannot understanding how they rationalise that sort of logic.
I believe we will have a series of challenges to the Supreme Court and the High Court. Lawyers will have a field day. It has been a mistake to hold this referendum. I do not believe it will solve the problem. The Government should take their courage in their hands and introduce legislation, even if it is difficult to do so.
As I understood the agreement at the beginning of business, the opening speakers from each party would have three-quarters of an hour and subsequent speakers would have half an hour. We have already had one division of speeches. There are many Senators who wish to speak and I wonder would it be possible, with the agreement of the House, for my colleague Senator Bennett to share this half hour with me?
Is that agreed? Agreed.
I have a lot of sympathy for Senator Keogh when she refers to the outlook of women and how difficult, and perhaps in some ways inappropriate, it is for us men to even to discuss this issue. Obviously there are aspects of it which we can never even hope to fully understand. We must listen very carefully on this issue to what women say and anything we say we must try to say with humility. Nonetheless, the reality is that we are legislators. We have a Government. This is a very important issue and we must put it forward and argue for or against it.
I am sorry this should become a political issue but even with the divisions we have seen so far I am glad it has not become as violent and as an acute an issue as, for example, in the United States. It is a basic moral issue and, for us, a constitutional issue and is one we have to face. We are talking about something which in a general sense is the most basic of all human rights and that is the right to life. We do not know when life will end. It could be today, tomorrow or in 20, 30 or 40 years. We have our beliefs, Christian or otherwise, but we do not know what is going to happen afterwards, but of all rights, the right to life is the most precious, basic and personal right. This is something the human race has recognised throughout history. They may have abused it but they recognised it.
The right to life can be abrogated only in the most extreme circumstances. We all tend to accept that one has a right to kill somebody in war. It is not a very pleasant right and there are people who say, "no, one does not have the right to kill in those circumstances, one should be a pacifist". It is a very moral attitude. Even in war it is regarded as barbaric to kill a prisoner of war once he has surrendered. It is barbaric to kill civilians but that does not mean it does not happen. We had the Hiroshima bombings, the bombings of Coventry and Dresden and recently the slaughter of civilians in Bosnia.
In a much more immediate sense we would appreciate that murder is the most heinous and dreadful of all offences because it takes somebody else's life. Indeed, in many countries if a person takes the life of another they can be judicially executed — the state can take a person's life but even in those countries, in practice, the sentence is commuted to life imprisonment. It is regarded as so extreme a punishment to take somebody's life, no matter how dreadful they have been, that they are sent to prison rather than executed. It is this basic right that we have to consider very seriously.
We also have to consider it now in the sense that we have a conflict: we have the right to life of the mother and we, as men, have to recognise that and step back a bit. We must be very slow to say under what circumstances we will legislate in this delicate area. Yet, the reality is that there is another life, the life of the unborn. There is conflict here. Let us think for a moment about that right. Maybe if there had been a different system in his country many of us would not be here today. The composition of this Chamber might well be different; perhaps it would be a better Chamber or it might be a worse Chamber.
When does life begin? There are many theological arguments about it. Senator Doyle referred to twinning. There are many scientific arguments about it. The reality is that if a baby is taken out of its mother's womb before the time of the normal expected birth it may still be alive. I have seen them and so have other doctors and nurses. I have also seen babies dying when they were born prematurely. It is fine to make political points about it but deep emotions are involved, as are very different and fundamental viewpoints and philosophies.
One of the sad things about this debate is that people have tended to condemn the views of those who oppose them. The pro-life people have a very logical and reasonable viewpoint which we must respect but let us not be too quick to say that those who believe in the mother having a choice are wrong or foolish. It is a rational, reasonable and understandable argument and we must not assume that because people are of that view they are in some way wrong in their opinions or that we have any right to say that they are wrong. There is no ultimate way we, as legislators, can really say what is right or wrong. We must try to respect a little more the differing points of view.
I am very glad this is going to a referendum. Let us see what people think. If ever there were something on which there should be a referendum, this is it. I am totally opposed to the idea that it should be dealt with by legislation. That is wrong. There will inevitably be related legislation but on so basic and fundamental a matter it should be entirely up to each individual to decide which way they will vote.
Let us look at the specific main issue here. I am not denigrating the issue of freedom to travel or freedom of information. They would make very worthwhile debates in themselves but compared to the issue we are discussing they fade into relative insignificance.
What is abortion? It is the expulsion and death of an unborn baby. It can happen spontaneously and naturally without any outside intervention, as Senator Murphy mentioned, and be a spontaneous abortion. Often it is nature taking care of things for one reason or another. What we are looking at here is inducing abortion and obviously such factors as the time of termination, when it is induced and so on, all come into that. The reality is we, in some sense or another, are taking it upon ourselves to induce an abortion to end a life. So, what are those circumstances?
I mentioned life as being a basic right. I sincerely believe that is what we should be looking at: the life of the mother and the life of the unborn. I believe when it comes to a conflict between the life of the mother, or any conceivable threat to the life of the mother, including the sort of instance my colleague Senator Keogh has mentioned, there are no ifs or buts about it, the life of the mother should and must take preference over the life of the unborn.
We medical people have no theological, legislative or moral right in this matter. It is simply that we happen to see what happens and what is there. When one has seen a seven month old baby come of its mother's womb and lie there crying for a while before it dies, it is no longer an academic argument. But, even so, I have no doubts whatever that if it is a choice between ending the baby's life or the life of the mother, the mother's life takes precedence.
However, if we go on from there and start to talk about the health of the mother, then we are entering into a very grey area. I am not at all sure we can give preference to the health of the mother when it does not threaten her life either immediately or in the long term. In such circumstances we cannot say "I will kill this baby". That is what one is doing. There are no ifs or buts about it.
I do not agree at all with the suggestion that the health of the mother should be inserted. Women may have a different view, as Senator Doyle suggests. This is something that should go to a referendum. The people will decide on this and women will vote as they think best and fit. There are good and moral arguments made by those who say one should be prepared to sacrifice the child rather than impair the health of the mother and I can sympathise with this view.
It behoves any parent to think about their attitude and reaction to rape and incest. No one, not even psychiatrists can get totally inside somebody's mind and say "I can judge whether you are telling the truth when you say you are contemplating suicide". The sad reality is that if suicide were grounds for abortion we would be saying we feel there should be freedom of choice in relation to abortion. To make such a suggestion is perfectly rational with very good arguments in favour of it although I do not happen to agree with it.
I think the Government have made a very good effort. They have a duty to govern and put this matter before the people and it is up to the people to judge and decide on it.
I welcome the Minister to the House.
In lending my support to the referenda on the right to information, the right to travel and the right to life I would like to address a number of issues. Much of what I have to say may seem far removed from any objective of support. So much has been said already, however, that it is necessary to look at both the detailed wording and the broader context of how these proposals will now go before the Irish people.
I know I speak for most people when I say, on the proposed amendments of the Constitution and, in particular, the amendment dealing with the circumstances in which a pregnancy may be lawfully terminated, that I am confused. I am confused by the extent to which so many people will go to make a point either for its own sake or for the kudos involved. These people, in their quest for notoriety, care nothing for those affected by the law as it stood, as it stands or as it will stand following any change in our Constitution. I would ask these high handed self-appointed custodians of other people's standards to find a quiet spot and ask themselves honestly what the attitude would be if there was an unwanted pregnancy resulting from rape or incest, in their immediate family — their wife, sister or mother. I suggest that a brief encounter with, or even a serious look at, such a possibility, would give them enough cold shivers to make them more than aware of the dishonesty of their stated objectives.
Here we are in a male dominated House, in a male dominated society, dishing out rules and regulations for women as if they were human incubators. The proposed amendments of the Constitution before us pose questions about women which are for women to answer. They should be decided upon by women but once again, as women, we have to turn to our menfolk and ask them to decide our future for us.
Fortunately, we live in a more enlightened society. The brainwashing on moral issues and the restrictions on information on a multitude of issues have been swept aside. Babies borne out of ignorance, excesses of alcohol and thoughtless, drunken, sexual activity are, for the most part, a thing of the past in Ireland. Men and women have a more responsible attitude to sex. In this light, we can put it to our men and women to see these referenda as essentially, women's questions, questions in which those who claim the moral high ground have no real part to play. To each and every individual we must say — make up your own mind. That is what it is for.
Should any man need a little prompting on the reality of the terrible results of crimes of sexual abuse, let him be prepared to accept the introduction of compulsory castration of the perpetrators. The operation is simple and safe under proper conditions. However, men need not worry, it is unlikely to come to that, at least, not for a few years. The male outrage and the solid Christian forgive-and-forget attitude of most women would see off any such proposal. It is a useful mental exercise for men to imagine what it would be like to have control over their bodies put into the hands of others who claim to know best. If we can agree to look at the referenda as essentially women's questions, then we will be moving in the right direction.
On the right to travel and the right to information — the Thirteenth Amendment and the Fourteenth Amendment — I fail to see how anyone could want to promote detention or ignorance, or regard them as desirable. I am reminded of a remark attributed to a Professor Derek Bok, an American academic who said: if you think education is expensive, try ignorance. It is sad that we should even have to consider these two amendments. Is it not sad that Irish women, finding themselves at a crossroads in their lives, have to be separated from their family and friends? Let us hope that greater freedom, good counselling and information as well as help from the people they can trust will help those Irishwomen who are contemplating an abortion to make up their minds, whatever their ultimate course of action may be.
On the availability or non-availability of lawful termination of pregnancy — the essential question raised by the Twelfth Amendment of the Constitution — the answer would be simple if all pregnancies were the outcome of lawful sexual intercourse, if all women were healthy animals capable of childbearing ad infinitum and if birth control was in the hands of all women. The answer would be easier if we truly believed we have a God given right to make sweeping decisions on the taking of, disposal of, call it what you like, the termination of the life of a fellow human being. It would be much easier if we had an appetite for the termination of the life of fellow human beings, in particular expectant mothers, but not even the most cynical do-gooders has that.
Letting our doctors do the dirty work seems a simple solution. We can tell them to keep the expectant mother alive; we can tell them that a part of her, the child inside her, is more important than she is. In passing perhaps they should also protect some of her other organs because they might come in useful for someone else as spare parts. I cannot help feeling the law is being turned around to make pronouncements such as: "Woman, you are impregnated, you are no longer in charge of yourself. Do not start getting any crazy idea about what you should do. That will not help. Others can and will not take care of everything. Whatever you do, do not fall ill, do not get involved in a car crash. Your body is not yours to live in; it is yours to take care of in case you need help that the rules do not allow." If that sounds cynical, it is. It is the reality of what the constitutional amendments seems to hold for us. I would be ashamed if this protrayal of bigotry and inhuman behaviour were representative of my fellow Irishmen and women. We Irish are renowed for our humane, sensitive and deeply felt response to human difficulties, whether individual tragedy or massive disaster.
When it comes to referendum day, the people of Ireland can make up their minds on the questions before them by asking "What would I want for myself or for one of my nearest and dearest if the decision was mine." The intimidation which we have seen will get a lot worse and it is not always easy to ignore.
No woman could honestly say that she would happily accept the inclusion of the phrase "as distinct from the health" in the proposed wording. No expectant mother, even in consultation with the expectant father, should be deprived of the right to decide what she wants to do when her health is in serious danger. The inclusion of this phrase is a gross insult, to all women. We women always seem to be allocated the bottom of the pile.
The Twelfth Amendment attempts to put right what has been shown to be a defect in our Constitution. Under this amendment, where an expectant mother suffers from an illness or disorder giving rise to real and substantial risk to her life, termination of her pregnancy will be lawful. This would be acceptable if it were not for fact that "life" is undefined and may, therefore, be interpreted as meaning her minimal existence up to the termination of her life. That is not acceptable. We all know that in the real world no doctor will allow an expectant mother's health to reach such a low point without taking proper action to protect her overall health, but why are we making rules which we know will have to be broken by our doctors? Perhaps we should be taking a more liberal interpretation of the phrase "to save the life" to include the quality of life. I prefer that approach to the proposed wording. I believe the authors of the amendment have proceeded on that interpretation. I do not feel happy that there is doubt about a matter of potential enormous divergence which is either totally acceptable or totally repugnant.
The exclusion of the lawful termination of pregnancy for expectant mothers with unwanted pregnancies, those who have reached a stage where they are in danger of taking their own lives, and even those who, through long term nervous or mental disorder, are in danger of self-destruction, seems to be achieving a general round of approval. I cannot understand why. Perhaps it all goes back to the point on which I started, maybe, like most other people, I am confused. Is it being suggested that such women are really quite sane and are looking for a quick way out? Is it the suggestion that so many women, when pregnant are potential cheats on the infant forming inside them that we need this wording? No doubt we can have that point clarified.
I am concerned particularly for those who need our special care and attention, those who are not capable of caring for themselves and certainly not capable of taking their problem to England. Surely we do not want to find ourselves inflicting even greater pain and the possibility of pushing to suicide — and that is the crime too — people who are already very ill, albeit in their minds. The human mind seems to account for very little in this whole public debate.
I have been wrongly accused, with the other women public representatives in the Fianna Fáil Party, of being voiceless and uncaring in this whole matter. I hope that in the past few minutes I have demonstrated that these accusations have been unfounded. It may be that what I have said will for now, be a bit like spitting into the wind in our male-dominated society which is legislating on matters which they have little chance of fully understanding.
Given all I have just said, it might be expected that I want to strike out in total condemnation and rejection of the amendment but I do not. As in so many situations in which one has to make difficult decisions, it is a matter of choosing the lesser of two or more evils. In supporting, in principle the three amendments to the Constitution, I would like to ask the Minister to consider the deletion of the two phrases "as distinct from the health" and "not being a risk of self-destruction" from the Twelfth Amendment Bill. I want to see these amendments enshrine real human values in our Constitution, not tight parameters on our perception of what is right or wrong. More than anything else, I want to see respect for women in society brought to the top of the agenda in this country, not tomorrow, not some time in the future, but right now.
I would like to share my time with Senator Mary Jackman.
I welcome the Minister to the House.
By attempting to find a single sentence solution to the complex area of pregnancy termination, the Government are doomed to failure and the result will be that the Supreme Court will inevitably decide on the legal interpretation of the wording. This reintroduces uncertainty in an area that urgently needs certainty. The experience of the 1983 wording confirms that we cannot rely on the uncertainty of a single sentence solution to this highly complex issue. There are conflicting interpretations of the legal meaning of the wording pesented in the Bills, even among Government. The presence of doubt and debate about the meaning signals a return to the uncertainty of the 1983 debate and the inevitable outcome of Article 40.3.3º which was inserted in the Constitution at the time.
What is required is detailed legislation which fully outlines the solution to the issue and fully removes the uncertainty of future legal interpretation. The words introduced in the Twelfth Amendment of the Constitution are as follows:
It shall be unlawful to teminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantive risk to her life, not being a risk of self-destruction.
At a practical level, these words are the basis on which patients or groups or individuals may go to law against doctors.
With regard to allowing the risk of suicide as a general ground for abortion, following careful consideration and research, I accept that the proposals in this area are correct. I have concluded that accepting suicide as grounds for abortion would lead to a gradual spread of abortion. I have discussed the situation with several psychiatrists and I am informed it is not possible to determine objectively if a person has suicidal tendencies. It is impossible to decide conclusively that a person who claims to have suicidal tendencies is not suicidal. The suggestion being made in the context of this matter is a symptom of our attitude to suicide and to the absence of an anti-suicide programmes in Ireland. Dr. Paul O'Mahony has written on his views on the inclination to suicide and the abortion area as follows:
One reason this kind of test should be totally rejected is that it would quickly become an exercise in hypocrisy, a charade and indeed a cover for what is frequently pejoratively termed abortion on demand.
The medico-legal test approach would be objectionable not because it would, in effect, permit abortion on demand — for which there are many strong arguments — but because it would institutionalise hypocrisy, obscure the important moral distinctions that underlie the issue, medicalise yet another aspect of human life and, last but not least, disempower and demean the pregnant women seeking an abortion.
Mental health professionals can help the suicidal. But the desire to kill oneself is a personal response to one's life situation not a medical or psychiatric problem as such. The picture is sometimes confused by the presence of a related psychiatric illness, such as depression, but suicidal intent is evidence not of disordered health but of a disordered life.
With respect to a medico-legal test for abortion based on suicidal intent, the crucial question is how capable are mental health professionals of recognising and assessing a "real and substantial" threat to life from suicide.
The foremost sign that a person is suicidal, for the professional and the lay person alike, is a communication from them that they are contemplating killing themselves. Most people who threaten that they will commit suicide do not go on to do so. Indeed, most people who make a serious suicide attempt, but survive, do not go on to kill themselves.
Actual suicide is so rare in comparison with suicide threats and attempts — even though the occurrence of threats or attempts generally increases the probability of suicide by comparison with rates in the general population — that the statistics of suicidal behaviour tell us clearly that we will be wrong only very occasionally if we always predict that people will not kill themselves even when they are threatening to do so.
That the threat is not real would be the correct, professional opinion — in the sense of the most scientifically based one — in every case where a woman looked to a medico-legal test based on suicidal intent for permission to have an abortion.
However, the ethics of professional practice would dictate that one should always err on the side of caution, finding that the woman was at real risk of suicide even when the underlying evidence could not fully support this.
The obligation of care owed to the patient or client means that the mental health professional must always make a threat of suicide seriously, even when the false positives, in which the threat of suicide is never actually enacted, are likely greatly to outnumber the true positives. The role envisaged by psychiatrists and psychologists if the amendment is rejected is, then, inherently conflicted. It both invests them with powers of diagnosis and assessment they do not have and places an intolerable burden of responsibility on their shoulders.
Our response to suicidal tendencies, not alone in pregnant women but in all people, should be by way of taking the person concerned through the crisis he or she is experiencing. He or she needs support and counselling which is available under modern psychiatric and psychological treatment methods. Irish society must open the lid on the issue of suicide, get rid of the taboo and stigma surrounding the area, obtain true statistics on the level of suicide and eliminate the sense of isolation and loneliness suffered by those with suicidal tendencies. We must introduce anti-suicide programmes and, as a prerequisite to doing this, the aura of criminality surrounding suicide must be removed. Suicide must be decriminalised.
Studies show that pregnancy reduces the overall risk of suicide when the figures are compared with those for the population of women who are not pregnant. A study over a period of 11 years to 1984, conducted in England and Wales, shows that pregnant women had one-twentieth the expected rate of suicide. Dr. Louis Appleby of the Institute of Psychiatry in London who conducted the research states:
Suicide during pregnancy does not mirror either the rate or the timing of neurotic disorders. It is a rare event throughout pregnancy including during the first trimester, when non-psychotic morbidity is common. The low mortality ratio during pregnancy, when child related concern should be at their most direct, supports the conclusion that such concerns are a powerful influence on risk of suicide.
The ethical question surrounding suicide is complex. There is a wide range of opinions regarding the issue of suicide and pregnancy. I recognise and understand that many disagree with my view on the matter. This highlights the need for legislation before the constitutional amendment, to allow all views to be developed and discussed. I am convinced the outcome would not be to allow the possibility of suicide as a reason for abortion.
With regard to the right to travel, the Supreme Court concluded that a woman's right to travel outside the State could be impeded by way of court injunctions in circumstances in which she intended to have a pregnancy terminated and in which there was real and substantial risk to life. The Thirteenth Amendment of the Constitution Bill amends Article 40.3.3º and states that it shall not limit freedom to travel between the State and another state.
It is surprising it has taken ten years for the difficulties that were present in the 1983 amendment to be identified. The then Attorney General warned of the danger that the interpretation of the wording would create serious difficulties. Those of us who accepted that advice, which has proved to be correct, were labelled abortionists and anti-life. Fianna Fáil did their political thing and ignored the substantive arguments. Nobody wants abortion to be freely available. That must never happen in Ireland. We must guard against introducing amendments to the Constitution, which contain ambiguous wording.
Since 1983 there has been an increase of 33? per cent in the number of Irish women having abortions in England; the figure has increased from 3,000 to 4,000 per annum. We must be concerned that Irish society has failed to deal with this problem. It is a disgrace that there is not a comprehensive non-directive counselling service available. I am convinced that if such a service was available and all the options set out, including the psychological implications of having an abortion, the number of women having abortions in England would dramatically drop. Withholding of information has had a negative effect. All options must be fully explained. Legislation to outline the legal parameters of presenting such information should be available before the Fourteenth Amendment, on freedom of information, is presented to the people.
In the light of the severe criticism of the Oireachtas by the Supreme Court for its failure to enact legislation following the 1983 referendum, it was expected that legislative proposals would be made and would be available for debate. It must be accepted that much more than the single sentence constitutional amendment is needed. The Government have no legislative proposals to provide for the implementation and regulation of Article 40.3.3º despite advice from the Attorney General that it is required. The Government should not ignore the advice of both the Supreme Court and the Attorney General.
The four member Supreme Court who were of the view that pregnancy which posed a real and substantial risk to the life of the mother should be terminated expressed their views in different ways. The Chief Justice gave the only majority judgment which expressed a distinction between the life and the health of the mother. Justice O'Flaherty stated that intervention "bona fide undertaken to save the life of the mother where she is in danger of death, is permissible under the Constitution and law. The danger has to present a substantial risk to her life although this does not have to be an imminent danger or instant danger."
Justice Egan stated, "a pregnancy may be terminated if its continuance as a matter of probability involves a real and substantial risk to the life of the mother." The late Justice McCarthy stated, "when there is a real and substantial risk attached to her survival, not merely at the time of application but in contemplation at least throughout the pregnancy, then it may not practicable to vindicate the right to life of the unborn."
The line between life and health is extremely dangerous and cannot be easily drawn. The timing of treatment will be affected by such distinctions and lives will be placed at risk. Treatment of a pregnant woman should not be withheld for fear of court action by an individual or by a group. There should be no provision contained in the Constitution which raises any doubt whatsoever as to the right of the woman to obtain treatment where circumstances arise where there is probable risk to life. There are differences among the medical profession as to how the provision will be applied if it becomes part of our constitutional law.
The vast majority of Irish people oppose abortion but simple constitutional amendment will not solve the dilemma. Legislation to cover the area is important and necessary. The formula presented to us here, if passed, will inevitably end up in the courts for interpretation. Most likely, the outcome will be similar to that of the 1983 amendment.
I wish to compliment and congratulate Senator Olga Bennett for her very courageous, honest and sincere address and to say that she certainly has restored my faith in the integrity of some politicians. I know it was hard for her to speak as she did. I respect her as a woman and as a politician for her stand. I am glad the Minister with responsibility for women's affairs is here and I hope he will listen very attentively to what we say in relation to this issue.
The Taoiseach in the course of his first Árd Fheis speech to his troops last spring stated he was in favour of open Government and, as a demonstration of this new openness, he decided to open Government Buildings to members of the public on Saturdays. The majority of the population misunderstood his message as meaning something of consequence and, above all, as being sincere. If the Taoiseach was of the opinion that by merely opening the doors of Government buildings to members of the public he was satisfying his criteria for open Government, he is holding the population in contempt. That same contempt is exhibited in the legislation before us today.
Despite repeated and frequent avowals of his desire to reach a consensus with all political parties, the Taoiseach made up his mind and expected the main Opposition parties to agree with him. I had hoped the hallmark of a new Fianna Fáil Government, with the Progressive Democrats, would be one of consensus and consultation but the hallmark today is power for its own sake and expediency.
Among the myriad of questions that come to my mind and to those of my colleagues regarding the issue of abortion are two which I hope to deal with in some detail. There is the matter of whether the matter should be dealt with by way of referendum or legislation. The wisdom of political commentators, unlike the Taoiseach, is that broad aspirations are dealt with in a Constitution and in matters where details have to be spelled out it is better that they are dealt with through legislation. That has been stated over and over again in our newspapers during the past number of months.
We have the broad parameters of a constitutional aspiration dealt with by the Supreme Court decision in the X case. In my opinion the role of Dáil Éireann and Seanad Éireann is to legislate on foot of that decision rather than bringing yet another amendment before the people which may or may not have the desired effect. It would be a foolish and foolhardy Administration that would repeat the mistakes of ten years ago.
The Minister for Justice, Deputy Flynn, said this issue was in danger of becoming emotive and divisive. I found it very hard to swallow those words. I campaigned against the amendment in 1983 and I find it very difficult to erase the memories of that divisive and vicious campaign. I find it extraordinary that the Minister can plead today for a debate that he hopes will be devoid of emotion and divisiveness.
Women of all ages to whom, as a politician, I talk on a daily basis, are honestly and absolutely of the opinion, that legislation is the only way to deal comprehensively with the issue before us. I have not met any women who does not hold that view. I wonder whether they will come out to vote? They want to know why we cannot have legislation and why we have to be subjected again to a Fianna Fáil solution to an Irish problem.
One of the more contentious questions that arises from the proposed amendment is the exclusion of the danger to the health of the mother as distinct from the danger to the life of the mother. This question has been referred to by Senators Keogh, Bennett, Doyle and many other speakers.
In my opinion the danger to the health of the mother can be separated into two distinct aspects, namely, the physical, and the psychological/psychiatric. The amendment is attempting to differentiate between an ailment that can be looked upon as life threatening as distinct from life shortening.
In essence, any serious ailment which a pregnant mother may have and which is not treated for a period of time because of her pregnancy is life shortening. The more obvious life threatening ailments, such as hypertension, cancer, and so on will, we are told, be treated under the constitutional provision. These conditions are obviously life threatening in the short term. However, one can argue with equal validity that a whole range of other ailments which may not be life threatening within the term of the pregnancy are life shortening and, therefore, by definition life threatening in the longer term. For example, is it fair that the ailment of a 23-year-old expectant mother should be left untreated for six or seven months because of her pregnancy, which could result in death in her thirties? These are the issues involved, the case studies that will come before us, and do not believe for a moment they will not happen.
Under this constitutional amendment we cannot prevent a case like that occurring. Will the doctor have to decide whether such a 23-year-old woman can be treated and whether her ailment is life shortening or life threatening? She may never reach her thirties because of an issue which is not provided for in this constitutional amendment.
I admit the question of a threat to life through suicide can be a somewhat more difficult decision. When we realise that a pregnancy, caused through rape or incest — it is interesting to note that those words were not used a great deal today, as if the sad case of the 14 year old rape victim never happened — is not provided for in the proposed referendum then it can be argued that the expectant mother who is in a suicidal frame of mind as a result of the original traumatic incident and who is facing even greater trauma because of incest or rape could, indeed, be suicidal in the very real sense. I want to emphasise the words "in the very real sense" because, as I understand it, in the medical world psychiatry is looked on as being an inexact science. It can also be argued with validity that a suicidal state is transient in a way that a physical ailment is not and that a tendency towards suicide can be controlled in a way that a physical ailment, such as cancer, cannot be controlled.
There is a danger that because of the Supreme Court judgment in the X case, where the full reliance of the court decision was based on the opinion of a psychologist rather than a medical practitioner, a psychiatrist or an obstetrician, the floodgates could be opened and abortion on demand could become a reality if the danger of the mother committing suicide was allowed as a reason for a termination.
Again and again I return to the point that it is impossible to legislate for the myriad of possibilities and traumatic cases that will inevitably arise because of a few sentences in our Constitution. Even at this 11th hour I call on the Minister for Health, the Taoiseach, and the Minister of State, Deputy Kitt to reconsider their position and to opt for a clear and more precise provision through legislation.
I should remind Members of the House that abortion on demand is available less than 40 miles from here. I refer again to the sigh of relief heaved by most people when the 14-year-old rape victim was permited to travel to England. That was a sigh of hypocrisy by those who now say that one cannot sin here but can sin, with their blessing, in another jurisdiction. I simply cannot condone such hypocrisy. One of the major concerns of legislators, the churches and other leaders is the traumatic effect an abortion can have on a mother who is not prepared or properly counselled for such decision. Surely the thrust of the Government's concern should be that where an abortion takes place, either in or outside the State, the necessary counselling with regard to an appropriate decision, as well as the consequences of that decision should be provided.
My fears in regard to information were not allayed today because all we heard was that legislation will be provided sometime and may be in the form of guidelines. I am not happy with that. We have the Dutch example. We cannot dispute the fact that in countries where there is proper counselling, sex education and a module within the school curriculum for parenting, is taken equally by boys and girls, such countries have a low incidence of abortion. Why do we not face up to the fact that we are not dealing positively with the question of sex education? We are obsessed with sex from a negative viewpoint and it seems to go on and on.
It seems, too, that the cultural values of the nation are being disregarded during the course of this debate and in the preparation of the legislation before us today. Many commentators have pointed to the fact that a substantial number of births in all maternity hospitals are to unmarried mothers. While this certainly represents a change in Irish society — we know that the concept of the family today may no longer be that of the nuclear family — it equally emphasises the fact that value of human life is, as it always was, very high among Irish people.
If, as we have been told by some of the promoters of this campaign, Irish people would rush to abortion clinics abroad, they merely have to look at the most recent statistics particularly from maternity hospitals in Dublin and other major cities which show that an increasing number of single mothers are prepared to have their children rather than resort to abortion, and they are prepared to keep them. That is why so few children are put up for adoption here. Young people, who are supposed to be promiscuous and irresponsible, are keeping their children because they place value on life.
If support structures were in place — pre-natal and post-natal counselling, financial support, housing, employment and all the services a single parent requires having gone through the rare and traumatic experience of childbirth — there would be fewer worries of abortion. If the Minister for Health was here I would ask him for increased funding for our maternity hospitals.
In regard to the number of women who go abroad for abortion there has been no mention here about the fact that those aborted children have fathers. There has been no reference to the irresponsible action of fathers who do not seem to care one way or the other what happens to their girlfriends. They are not concerned about counselling.
I wish to refer briefly to the question of information and counselling. Does the Minister for Health consider it fair that health boards will not provide counselling, that we will have a two-tier society where the wealthy will have access to a specific service and the poor will not? Every expectant mother should have ready access to expert advice in order to ensure that any decision regarding a pregnancy is taken following proper counselling. If a proper non-directive expert service is not provided through our health board structure, how will it be provided? We have the Minister's aspiration that advice will be provided through certain agencies, which get very little support and operate on a voluntary basis. Is the Minister telling those people that they can have counselling if they go to their consultant in a private capacity but cannot have it from their GP or consultant if they are a medical card holder?
Finally, there has been great emphasis since 1918 on giving the vote to women and in more recent years their right to equality with men. I would argue that that has not been delivered on. Are there any parallel examples in legislation which would affect the lives of men in such an intimate way? We are all aware of the true picture of the Irish mother but we are paying lip service to it. I would ask people to consider the motherly instinct of every women and female of the animal species, which is to protect her young at all costs. Are Irish women being protected? They are not, but they need to be protected from this Government.
With the permission of the House I would like to share my time with Senator Hanafin.
Is that agreed? Agreed.
Cuirim fáilte roimh an tAire Stáit agus roimh an Bille seo. Many people would prefer if this Bill were delayed and we had more time for dicussion, consultation and so on, but nuair a chuirtear gach rud ar an méar fhada, éiríonn an méar fhiada níos giorra-ghearr tar éis tamaill. When everything is put on the long finger the long finger gets shorter after a while.
This Bill respects the sanctity of the unborn human life which was enshrined in Article 40.3.3º of the Constitution in 1983. That Article reads:
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
As I understand it, it is the words "as far as practicable" that caused the problem. What they mean is that if the mother's life is in danger and medical assistance is needed to save life, the life of the mother comes first. Unfortunately, the Supreme Court ruling in the X case made it possible to travel outside the State to have an abortion. The effect of the decision on the substantive issue is that termination of pregnancy is permissible in the State where there is real and substantial risk to the life, as distinct from the health, of the mother which can only be avoided by such termination. Since then, women may have abortions in this country in certain circumstances. The X case involved a threat of suicide. I wonder how many test cases could be taken for other ailments. Dr. Paul O'Mahony, an expert in this area said that the medico-legal test would be a dishonest mechanism. He stated:
In my view, none of these points is strongly supported by the evidence that Dr. Clare adduces. However, even if we accept the point fully, they do not make the idea of some kind of medico-legal test for access to an abortion, based on an assessment of the authenticity of a pregnant woman's inclination to sucide, any more palatable or more desirable.
...The foremost sign that a person is suicidal for the professional and the lay person alike, is a communication from them that they are contemplating killing themselves.
Most people who threaten that they will commit suicide do not go on to do so. Indeed, most people who make a serious suicide attempt but survive do not go on to kill themselves.
Actual suicide is so rare in comparison with suicide threats and attempts — even though the occurrence of threats or attempts greatly increase the probability of suicide....
The medical people and the psychiatrists are arguing among themselves on this issue.
Professor P. Casey from the Department of Psychiatry of a London institute published a document entitled: "Suicide during Pregnancy and in the first postnatal year". His conclusions were:
Women in the first year after childbirth and during the pregnancy have a low risk of suicide despite their high rate of psychiatric morbidity. Under-reporting of maternal suicides is unlikely to explain the findings, though it may affect their magnitude. Motherhood seems to protect against suicide. Concern for dependants may be an important focus for suicide prevention in clinical practice.
An important part of his research is in the area of suicide during pregnancy. In regard to observed expected ratios for suicide during pregnancy, that document states that a total of 14 suicides were reported in a 12 year period compared with an expected 281.5. This is what the experts predicted but during a 12 year period there were only 14 cases of suicide as against an expected 281.5. Given the overall mortality rate, pregnant women accounted for one-twelfth of the expected number of suicides. Those are facts.
The document went on to state:
The remaining explanation is that being a mother is, in itself, protective against suicide. An American study of reasons for living found that in a sample of psychiatric inpatients those who had had suicidal thoughts and those who had actually carried out a parasuicidal act were distinguished by "child-related concerns". Specifically, these were (a) that suicide would harm the children, (b) that it would not be fair to leave the children to the care of someone else, and (c) a desire to watch the children grow up. Such a result is in keeping with the large volume of research on cognitive aspects of depression...
Similarly, suicide during pregnancy does not mirror either the rate or the timing of neurotic disorders. It is a rare event throughout pregnancy, including during the first trimester, when non-psychotic morbidity is common.
Those experts and tests show that the concept that a woman should terminate a pregnancy because of suicidal intent has been proved to be wrong. Even in the X case it was not an eminent practising psychiatrist who gave that advice, but different medical evidence has been given since.
As another speaker said today, the amendment will leave undisturbed the existing affirmative acknowledgement in Article 40.3.3º of the right to life of the unborn with due regard to the equal right to life of the mother. The amendment will be an addition to the existing Article 40.3.3º, not a substitution. The effect of the amendment is to afford full protection to the lives of pregnant women. Under the amendment, where a pregnant woman is suffering from a physical medical condition that endangers her life if the pregnancy continues, the pregnancy may be lawfully terminated to save her life. The amendment, therefore, accepts the Supreme Court decision in every respect except suicide.
I do not understand why so many people believe this amendment will not protect women; it will. Let us face it. If a husband and wife were faced with a pregnancy which they both knew would put her life in danger, and medical advice confirmed that, no one would expect her to continue with the pregnancy, that is why the words "as far as practicable" are included in Article 40.3.3º and this amendment will copperfasten the right to life.
The Government should be congratulated on reaching a decision because we are playing with words. The Government have studied other wording and have given a great deal of thought to it. They have taken the best legal advice available and they do not want to insert flawed wording in the Constitution that could lead to another case being brought before the Supreme Court.
The proposed wording is watertight and protects women. What is being proposed on this issue is the insertion into Article 40.3.3º of the Constitution of the following additional wording:
It shall be unlawful to terminate the life of an unborn unless such terminationn is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
People have spoken about counselling. That is important. Counselling is available at present but, unfortunately, many people make money killing unborn children. Thankfully, that is not the case here and, hopefully, this amendment, when it is passed, will ensure that that will never happen in this country.
Have we asked ourselves why women go abroad to have an abortion? They go because, in many cases, their boyfriends do not want to live up to their responsibilities. In many cases it is the boyfriend who urges the girl to have an abortion. Those girls are led to believe it is as simple as getting out a tooth, but that is far from the truth. Any of us who watch satellite television — for example, Lifestyle — will have seen and heard many women on America programmes talk about their experiences after an abortion; they are scarred for life. We hear how scarred women are after being raped but it is nothing compared to the trauma girls suffer following an abortion. Even on our radio stations we have heard women talk about the terrible trauma they experienced following an abortion.
While counselling services are available here, there is a need for greater public awareness on the issue of abortion. As we know abortion clinics in Britain advertise their telephone number. Perhaps, a freefone counselling service could be provided here. With proper counselling many of those girls might not go to England for an abortion. Those who promote abortions are endangering the health of young girls many of whom cannot have children afterwards because of infection, etc. Some doctors who perform abortions care only about the money; they have no regard for the patient who is sent home and there is no follow-up care. Nobody is highlighting these problems. In my view this amendment will help to stop women leaving this country for an abortion by creating an awareness in regard to abortion.
The Thirteenth Amendment of the Constitution deals with the right to travel. This will not be a Government decision, the people will decide. It would be very foolish for anyone to oppose this amendment and I ask people to support it. I am pro life, as are all the members of the Fianna Fáil Party and the Government but we have a job to do. The Government have set about doing that job in a proper manner and hope to put an end to the present ludicrous situation.
Cuireadh an díospóireacht ar athló.