There is a connection but it is a bit tenuous in terms of dealing with it.
Tairgim leasú a 3:
I leathanach 6, line 7, ", go sonrach," a scriosadh.
I move amendment No. 3:
In page 7, line 7, to delete "In particular, the" and substitute "The".
This relates to a problem I have with the wording currently proposed. We must remember this is a subsection which is being added to Article 40.3. In that context, "In particular" gives rise to uncertainty and ambiguity about the relationship between the existing subsections 3 and 4. Article 40.3.3° of the Constitution refers to the right to life of the unborn and with due regard to the mother's right to life. The new subsection refers to the right to life of the unborn in the womb and makes no reference to the right to life of the mother. The new subsection implies that it is intended as a specific application of a general principle. The reality is that it is an exception from the general principle since its effect is to overrule the judgment of the X case, which was grounded on a Supreme Court judgment in subsection 3. A clear conflict between the two subsections exists and it cannot be reconciled by what appears to be a drafting sleight of hand.
It would be clearer if Article 40.3.3° was withdrawn and replaced with this proposal. I would not support it but at least there would be no ambiguity. That is not being proposed by the Government. It is proposing to keep Article 40.3.3°, which refers to where it is practicable to save the life of the unborn and also provides for the right to life of the mother. That has already been interpreted by the Supreme Court as including a threat to suicide or self-destruction. That stands and will continue to stand if there is this amendment to the Constitution. However, there will be an additional subsection 4 which, in effect, does not have as extensive protections not just for the mother but also for the unborn in the womb. It specifies that one is only talking about the unborn after implantation. Therefore, there is an ambiguity between the two.
I would like to refer to legal advice which I managed to get by begging for it. My briefing has been put out of synch by the way the Minister has insisted on rejigging the list of amendments, therefore, he will have to allow some leeway. The legal advice states that the proposed new Article 40.6.1° contained in the First Schedule to the Bill provides that Article 40.3 shall be amended to include a new Article 40.3.4° and 40.3.5°. Article 40.3.4° provides that, in particular the life of the unborn in the womb shall be protected in accordance with the provisions of what will be known as the Protection of Human Life in Pregnancy Act, 2002. It is difficult to assess the compatibility of this provision with the existing Article 40.3.3°, in which 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 is practicable, by its laws defend and vindicate that right. It then proceeds to make certain guarantees.
The first difficulty relates to how far the new subsections actually overrule the judgment in the X case. The authoritative ruling gave priority to the mother's right to life, where that is in conflict with the right to life of the unborn. Where what will be the Protection of Human Life in Pregnancy Act, 2002, clearly will not apply, Article 40.3.3°, the judgment in the X case remains law. Thus section 1(1) provides that abortion means the intentional destruction by any means of unborn human life after implantation in the womb of a woman. The judgment in the X case remains the law in relation to unborn life prior to implantation, presumably after conception. Article 40.3.4° offers no protection to the life of the unborn prior to implantation or outside the womb of the woman, for example, in the case of an ectopic pregnancy, where the foetus develops in the fallopian tubes or, more rarely, the abdomen or cervix.
The words at the start of Article 40.3.4° are difficult to interpret. Do they mean that the unborn can continue to have protection beyond that offered in the Bill, or do they limit the protection of the unborn to that offered in the Bill? These words imply that the Article may be incompatible with the existing 40.3.3°.
Article 40.3.4° may also be incompatible with Article 40.3.3° because it makes no reference to the equal right to life of the mother. There is also no reference in what will be the Protection of Human Life in Pregnancy Act, 2002, to the right to life of the mother, yet Article 40.3.3° clearly provides that the State must have due regard to the mother's life. Limiting the right to life of the mother by ruling out suicide as grounds on which her right to life may take priority over that of the unborn appears fundamentally to be incompatible with the protection for her right to life under Article 40.3.3°. It is, therefore, very likely that, even if passed, Article 40.3.4° will give rise to significant litigation issues as it is difficult to see how the inconsistency between these two Articles can be overcome, given the wording of what will be the Protection of Human Life in Pregnancy Act, 2002.
The Minister, by using the words "in particular," is stating that there is a difference between this proposal and the rights enshrined in Article 40.3.3°. That is of comfort to the many concerned that he is taking suicide out of the equation, or trying to, because I do not think he will succeed. He says that the words "in particular" will cover it, but the generality is already enshrined in the Constitution. What is he actually saying? Is he saying that, notwithstanding the fact that women have certain rights under Article 40.3.3°, he is going to limit them? This is not clear and not a matter of my opinion - I am proud to be a politician in dealing with issues such as this - but it is an issue about our work resulting in litigation with cases taken which will raise serious doubts about the process on which the Minister is embarking.