Limerick East): I thank all the Senators who contributed today to a very full, frank, calm debate. Thank God the Seanad is a less passionate place than the other House and certainly much less passionate than the debate which went on outside.
This was a very difficult Bill to draft because, as Senators will appreciate, one was trying to draft a Bill which treads a path between competing fundamental rights. Article 40.3.3º of the Constitution gives a right to life to the unborn child and an equal right to life to the mother. That is something we all approve of, but of course a difficulty arises if the two absolute rights come into conflict. Which right should take precedence? We saw what happened in the course of the X case and the emotion that was generated when there was a straight conflict of rights, insofar as the Supreme Court was concerned, between the rights of Miss X and the rights of her unborn baby.
The issues of travel and information came up at that time and the people in their wisdom, by way of referendum in 1992, decided that the right to life of the unborn child and the equal right to life of the mother could not be vindicated in a manner which transgressed a citizen's freedom to information or freedom to travel. A conditionality was introduced in 1992 to the fundamental rights which were enshrined in the Constitution in 1983. It is interesting to note that the information amendment was a subsection to Article 40.3.3º. It says that
This subsection shall not limit freedom to obtain or make available in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.
Since it was the subsection to the section which gave the right to life to an unborn child, it was quite clear that the services referred to in another State were services to terminate a pregnancy. That is the position, and the ground is fairly narrow; but even though the amendment was passed, it did not take away the right to life of the unborn child or the right to life of the mother.
I do not intend replying to every individual point that was raised here in my reply now; those points can be dealt with in detail on Committee Stage. But there is a school of thought that came through the debate here and outside the House that there is something peculiar about information which is non-directive away from abortion, that it cannot be directive towards abortion. People are arguing that it should be neutral between the pro-abortion position and the anti-abortion position. In other words, a doctor could be allowed to encourage somebody to go for termination as strongly as he could be allowed to go to Cura, for example. The problem with that line of argument is that it forgets that the right to life of the unborn child is still there in Article 40.3.3º. This is merely a qualification, so it is not possible under the Constitution to have a situation where you are neutral in counselling, because the right of the child is there and the right of the child must be protected.
The same argument applies to those who say that this is some kind of intrusion in the doctor-patient relationship when a doctor is advising the mother. She might be ill or her life might be at risk even, as in the circumstances of the X case. Again there are limitations on what the doctor may do, because in dealing with a pregnant woman he is dealing with a woman who has very strong rights, but he is also dealing with an unborn child who has rights as well. He cannot favour one unduly over the other, even in the X case circumstances. It is a very narrow line.
The fact that the 1983 amendment, giving the right to life of both mother and child explicitly in the Constitution, is qualified in 1992 by the freedom to travel and the freedom to information, those rights are not taken away or cancelled by the 1992 referendum. That is why it is so difficult to draft and that is why it is so difficult for amendments to be drafted for this also.
Senator Norris raised one point which I wish to deal with. That is the question of who is caught by the Act. The best way to explain it is that when the people voted in 1992 they voted that there would be a specific right to information in the Constitution and they also voted that the Houses of the Oireachtas would delimit or restrict the application of that particular right. The Bill does this by defining what a person is under the Act and it is only that person defined in the definition section who is restricted. That person is a person who engages in or holds himself or herself or itself out as engaging in the activity of giving information, advice or counselling to individual members of the public in relation to pregnancy.
Unless people are self instituted as advisers, either as medical doctors or as counsellors in a clinic, they do not come under the provisions of the Bill. Therefore, a mother, as in the X case which was mentioned by Senator Norris, would be absolutely free and unrestricted to counsel and advise her daughter and make arrangements for her because she does not come under the Bill. The same would apply to a sister, a friend, a husband, a boy friend or any other relationship. The Bill applies to persons defined by it. They must in some way be self instituted as advisers to women who are pregnant. Information is closely defined in the Bill and I am sure Senators will look at this.
A number of political points have been made and I will not dwell unduly on them. There is no particular mystery about the timing of the Bill. The programme A Government of Renewal said this would be done as soon as possible. Everybody knows I was given a file and a draft Bill, which was at an advanced stage of readiness. Any time I was asked about it I said I was working on it. That people did not believe I was working on it or thought I would dodge it and not introduce it is not my fault.
More explicitly, Deputy Harney asked the Taoiseach in the Dáil about a fortnight before the Bill was published — I think it was on 7 February — when it would be introduced. He left her in no doubt that its publication was imminent. There were only a handful of Deputies in the House that morning and the Fianna Fáil spokesperson on Health was not there. To be quite frank, Fianna Fáil was not marking the issue that morning because it was as clear as crystal from the Taoiseach's reply to that it would be introduced in the next ten days or two weeks. Senators can check the record of this in the Official Report.
Not only was the Bill accompanied by an explanatory memorandum but by a detailed explanatory leaflet. Such a leaflet is not the product of a Minister in a hurry who is trying to steal something out under cover of the Framework Document. This was planned by us to be published and it was a coincidence that it arrived at the same Cabinet meeting as did the Framework Document. Rather than bringing it forward I put it back so that it would not coincide with the publication of Framework Document on the same day.
I had discussions with Deputy Harney and Deputy Bertie Ahern. I read in a newspaper on Sunday that Deputy Ahern said he thought we were having a meeting to discuss the North. This may be his memory of it, but if he checks the letter I sent him that morning he will see that the first line said the publication of the abortion information Bill was imminent and that I wanted to discuss it with him. I am simply saying that in that interview he was mixed up about the sequence of events. My position is quite clear and straightforward on this.
The other political point to which I would like to reply is the Fianna Fáil position on the Bill. Fianna Fáil was in Government with the Progressive Democrats when the referendum was put in place. Specific commitments were given at that time, which I outlined on Second Stage. The heads of a Bill were produced and this Bill is based on the same heads which were agreed at that stage.
During the Fianna Fáil Labour Government a great deal of work was done by the then Minister for Health, Deputy Howlin, and a draft Bill was produced. Many people have forgotten that my immediate predecessor as Minister for Health was not Deputy Howlin but Deputy Woods. Labour, as Senators will recall, walked out of Government for reasons we all know and Deputy Woods was appointed Minister for Health and had full access to the file, including the draft Bill, the legal advice from the previous Attorney General and the memorandum to the Government in 1992 when the heads of the Bill were arranged. There is no secret about these things so Fianna Fáil should not point the finger at me and say I am putting it in the wrong position.
When I was negotiating the part of the present programme for Government dealing with this issue, I was given a draft of the Bill. The Labour Party told me it did the same with Fianna Fáil. The part of the programme for Government dealing with this was exactly the same as that in the programme for Government agreed by Fianna Fáil and Labour because I did not want any divergence but was looking for consensus. It was Fianna Fáil's draft which went into paragraph 29 of the present programme for Government, where the commitment is given. The finger should not be pointed at me and it should not be said that I am misconstruing the position.
Senator O'Kennedy's intervention was the only one in either House which was personal and cast aspersions on my truthfulness and accuracy. This simply is not the case. He played on the fact that I said Fianna Fáil agreed to this. I will be more precise and say that the Fianna Fáil leader and negotiators agreed to it and this was part of the full agreement which was signed by the then Tánaiste, Deputy Spring, and Deputy Ahern, the leader of Fianna Fáil. The agreement broke down late on a Sunday night and the position changed by the following morning. Before it broke down, the full proposed programme for Government had not only been agreed but signed. It included a commitment to a Bill such as this. I know it was not referred to the Fianna Fáil parliamentary party but I do not believe that Senator O'Kennedy on his own would have stopped the formation of a Government on the basis of a paragraph in the proposed programme for Government.
On the question of constitutionality, referring the Bill to the Supreme Court is entirely a matter for the President under Article 26 of the Constitution. I have received assurances from the Attorney General that the Bill is entirely in accordance with the Constitution. I would not have introduced a Bill unless it was constitutional and no Minister would do so. When the case was argued very forcibly on Committee Stage in the Dáil, I went back to the Attorney General between Committee and Report Stages and again obtained assurances. The Attorney General had the advice of very eminent senior counsel which supported the view. I am presenting the Bill to the Seanad as being constitutional.
There are a number of points I want to take up on Committee Stage. I will deal with one or two points now. Senator Henry in a very interesting contribution raised a number of issues which go beyond the immediate scope of the Bill and I will find a way of responding to them later. On the question of a GMS doctor who has a conscientious objection and who cannot counsel a woman who approaches him, there are provisions in medical ethics that such a woman would go to another GMS doctor without incurring a charge. To make doubly sure of this, I will contact the health boards to make sure there is not a double charge and that a system is in place.
Senator Lydon said I am introducing the freedom to give names and addresses to pregnant women but I am not. There is nothing in the Bill about names, addresses and telephone numbers. That freedom was given by the people in 1992. I could have inserted a prohibition — this would have met Senator Lydon's point — on the provision of names, addresses and telephone numbers but I am advised by the Attorney General that this would be clearly unconstitutional because such provision is precisely for what the people voted. That advice is absolutely supported by the advice of the previous Attorney General, Mr. Harry Whelehan, who, when this point was raised in the Supreme Court, advised the court that he was not entering a defence to raising an injunction on the Well Woman clinic on the provision of names and addresses because, in effect, circumstances had changed since the referendum and what was illegal before it was no longer illegal after it. The exact issue was names and addresses.
The reference to bell, book and candle seems to have upset Senator O'Kennedy. That was not intended as a general criticism of the hierarchy. The hierarchy are absolutely right to speak out on an issue like this. The Church is a teaching church, it not only has a right but an obligation to teach the moral law. I have said this already. The statement made by the hierarchy in Maynooth last week was prudent, timely and compassionate and I have no problem with it. The hierarchy was not only within its rights but was obligated to do so.
The moral law has not changed from 1983 to 1992 and 1995. The Church is absolutely consistent in preaching the moral law before and after the referendum of 1992. What has changed is the constitutional position. Abortion is not any more moral now than it was in 1991. Freedom to obtain information on abortion has changed because the Constitution has changed. Senator McGennis said she could recite all the answers to the catechism she learned at school and she would be able to advise Senator O'Kennedy better than I could.
The ceremony of excommunication, those Senators who got a good training will recall, involved ringing the bell, closing the book and blowing out the candle. It was a reference to a statement about excommunication. It was not a reference to the general statement of the hierarchy.
I hope I have answered the primary points raised. I have noted many points which I am sure will come up again on Committee Stage and I can deal with them then.
If Senators want to complete the Bill, we will but that is entirely up to the House.
