It is not acceptable to us, and it never will be, that our Constitution should set out to treat half of our citizens differently, just because those citizens happen to be women.
From the day it was founded eighty years ago, the Labour Party has stood for life. We have stood for the right to life, to shelter, to health and to welfare — and we have stood for them as fundamental rights. Whether they were written into the Irish Constitution or not, it has been a fundamental tenet of my party that every Irish citizen has an equal right to all of these things. And we have campaigned for them abroad, just as we have at home. Our record, and our consistency, in all of these issues cannot be challenged by anyone.
We have stood for the principle of a republic throughout all those years too. A republic for us involves a society built on tolerance, on freedom of expression and freedom to follow different beliefs. This Twelfth Amendment of the Constitution Bill, as it is drafted, is a brutal assault on the republic. None of that makes us particularly special, or marks us out as different. Most Irish people believe in the rights I have mentioned. Most Irish people believe in republican principles — real republican principles, not the perversions of republicanism practised by terrorists. Most Irish political parties, too, support republican principles. Indeed, one party leader in this House once made a famous declaration of his determination to stand by the republic. We will all watch with interest to see whether or not he stands by, or stands idly by instead, when this attack on republican principles is voted upon this week.
This Bill is being foisted on the people of Ireland by a Government that either has not thought it out, or is unable to understand, or is unwilling to admit, what the Bill actually means. I have to say at this stage that it is typical of what we have come to expect from the present Taoiseach, who appears to believe in the idea that Government can operate with its eyes tightly shut, stumbling from crisis to crisis, without ever any clear philosophy or considered policy. It seems clear from all of the Taoiseach's utterances on this subject that he regards this issue as nothing more than a political sore tooth, and the quicker it is dealt with the better. It does not matter if the management of the problem actually makes it worse in the long-term — sure that will be someone else's problem. The problem created by this Bill will be much more than a problem for politicians. It will be a problem for the rights of women. That is a fact that appears to have been completely ignored and passed over by the Taoiseach.
This is a Bill which will incorporate into our Constitution, alone among the written Constitutions of the western world, the principle of legal abortion, but it is so badly drafted that in practice, the wording of the Bill will potentially put many more women at risk than are at risk at the present moment.
The most criticised aspect of the drafting of this Bill has been the use of the distinction between the life and the health of the mother. Ministers have responded to all the criticisms of the drafting by saying "that is not our distinction, they are the words of the Chief Justice in the X case". That is one of the many myths that the Government are trying to perpetrate about this issue, and it is as well that it be disposed of at the outset.
The Chief Justice in the X case was dealing with a very particular set of circumstances, involving as we know the sort of tragedy that can devastate any Irish family, no matter how close or loving. He was in essence adjudicating between two "tests" that had been put forward in the particular circumstances of that case.
The first test, advocated by counsel on behalf of the family, was (and I quote from "The Attorney General v. X and Others"):
...If it was established as a matter of probability that the continuation of the life of the unborn child constituted a real and substantial risk to the life of the mother then the conflict thus arising should be resolved by preferring the life of the mother.
The Attorney General, on the other hand, argued in that case that the "true test" should be:
...If it was established in any case that the continuation of the life of the unborn constituted a risk of immediate or inevitable death to the mother the termination of the pregnancy would be justified and lawful.
It could hardly be clearer, in my view, that the Chief Justice in adjudicating between those two tests was deciding between the issue of "real and substantial risk" on the one hand, and "immediate or inevitable death" on the other. The Supreme Court was not asked in the particular case to adjudicate between health and life. If they had been, the arguments would have been entirely different. The conclusions might more readily support the position the Government have arrived at, or they might not. We are not in a position to know. What we do know is that it is absurd and irresponsible to use the remarks of the Chief Justice, taken completely out of their context, as justification for these dangerous words.
That is not the only irresponsibility of which the Government stand accused. In a statement I issued last weekend, I pointed out that Ireland has many pressing and grave economic and social problems. They all demand the attention of policy makers and people alike. It is completely wrong that they should be allowed to be pushed to one side of the political agenda in order to facilitiate this debate, which will increasingly divide homes and communities over the weeks and months ahead. And for what? To insert into our Constitution a form of words which is gratuitously offensive to every woman in Ireland, and to every man who believes in equal citizenship.
Throughout the debate, the only thing we can be certain of is that we will be bombarded from all sides by people who are absolutely certain of the correctness of their position. One of the most dispiriting aspects of all of these issues is the capacity for participants to adopt absolute and fundamental positions about issues where absolutism is simply impossible.
We will be lectured by doctors who assure us that doctors know best, though we are unlikely to hear from women who have suffered because of mistakes made by the medical profession. We will be lectured by male lawyers and professors of law who will also know best — even though they could have no appreciation of the hurt their views can inflict. We will be lectured by politicians who will argue they and they alone have the interests of the nation at heart, as if the nation consisted of only those who agree with them.
Throughout all of these lectures, the people most affected by them are the people least likely to be consulted. They will, in general, be women and girls, many of them in distress or pain, many of them suffering from physical or mental conditions of which we are being asked to take no account. On polling day, many will cast their votes more in hope that this is the end of the matter rather than in any genuine expectation that they have solved a spiritual, emotional, and physical crisis.
If this Government were serious about addressing that emotional and physical crisis, they would think again. But they are not serious. This Government are not only willing to play politics with the lives, health, feelings, emotions and beliefs of Irish women — they seem determined to do so. And they are determined to do so in a particularly callous, brutal and unfeeling way. I have not seen in any of the interviews with Ministers that have been broadcast or recorded over the past couple of weeks so much as a shred of sympathy for the agonising dilemma in which so many women find themselves.
Let me make it perfectly clear where I stand. I do not want an abortion regime in Ireland. I do not intend to campaign for the introduction of such a regime. But it is unacceptable to me, and I suspect to the great majority of people in this country, that no matter what distress or danger a pregnancy causes, no matter what caused that pregnancy in the first place, no matter what the outcome of that pregnancy is going to be, that we should by our laws and Constitution expect every woman in every circumstance to carry that pregnancy to full term.
Let us make no mistake about it. That is what this amendment, and the accompanying refusal of the Government to legislate unless the amendment is defeated, really means. We are going to put into our constitution, if this Government have their way, a provision that will require doctors, and nobody else, to determine what might be a constitutional abortion and what might not. That is more than an absurdity. It is an obscenity.
For the remainder of this speech, I intend to put on the record of the Dáil the detailed views of the Labour Party in relation to the three amendments proposed by the Government.
The Government's proposed amendment in relation to travel in the Thirteenth Amendment Bill is a new subsection (presumably 40.3.3ºi) to read as follows:
Subsection 3º of this Section shall not limit freedom to travel between the State and another state.
The wording proposed by the Government presumes that there is a right of travel but is this correct? Such a general right is not referred to in the Constitution anywhere. We will be putting an amendment on Committee Stage of this Bill to insert a positive right to travel in Article 40.3.2º
The amendment must also protect the right to receive a service lawfully available elsewhere, as well as simply the right to travel, and we will be putting down amendments to that effect also.
The courts have held that the unborn is implicitly protected by other provisions of the Constitution, apart from Article 40.3.3º. I refer to statements in McGee v. Attorney General and Norris v. Ireland). So these other provisions could be relied on in a travel injunction case, since the amendment relates only to limiting the scope of Article 40.3.3º.
The wording proposed by the Government in the Fourteenth Amendment Bill is:
Subsection 3º of this section 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.
Again, this wording is negative rather than affirmative. It does not create a right to give and receive information. Neither does it prohibit the Oireachtas from banning information. It is unreasonable to expect people to vote on this without an idea of the conditions to be laid down by law. In addition, it is essential to protect the right to counselling and to assistance as well, and we will be putting down amendments to try to achieve that.
It is perhaps another indication of the haste with which this legislation has been brought before the House that we were informed this afternoon by the Minister for Justice that his colleague at some time during this debate will give some draft ideas on the legislation that will be introduced. That is not good enough. This issue is far too serious and urgent for the House to wait upon draft legislation to be put before us by the Minister for Health. If the Government had been organised in what they were doing, that legislation, even in draft form, would have been before the House prior to the commencement of this debate.
The words "another state" in that Bill should be "another jurisdiction" since, for example, abortion is generally unlawful in parts of the state of the United Kingdom (Northern Ireland) but is generally lawful in the jurisdiction of England and Wales.
Even a cursory examination of these two Bills, which we support in principle, reveal bad and sloppy draftsmanship which must, in our view, be corrected on Committee Stage if the amendments contained in them are to serve the long-term purpose for which they are intended. But the mistakes in these Bills pale into insignificance baside the truly draconian meanings and interpretations which potentially can arise from the Twelfth Amendment Bill, the substantive issue, with which I now propose to deal.
As I have already said, the proposed changes to Article 40.3.3º of the Constitution represent an intensely sensitive issue, which involves the lives, health, feelings, emotions, and beliefs of every Irish woman and girl. These changes must be examined carefully in that light. So far, the confusion spread by the Government's different interpretations of what the proposed text means has only served to illustrate now little consideration has been given by Ministers to so sensitive an issue. It was absolutely appalling to witness the different interpretations given in the hours immediately after the wording was presented. It showed yet again the lack of discussion and proper preparation by the Government before publishing the wording.
It is worth making the point at this stage, in case there is any misunderstanding about it, that this Bill was not required by the joint declaration signed by the four party leaders prior to the Maastricht referendum. It was the Labour Party which drafted the relevant passages of that declaration dealing with these issues. We were careful to make a clear distinction at the time between, on the one hand, the agreed determination of the four party leaders to copperfasten rights of travel and information, and on the other, the right of the Government to bring forward proposals for legislative and/or constitutional change when the Cabinet sub-committee had finished its work.
All the evidence suggests that the Cabinet sub-committee did no serious work whatever on this issue. It seems instead to have functioned as nothing more than a vehicle for the rivalry between the two political parties in Government, with the smaller party allowing themselves to be rail-roaded into decisions they clearly did not support.
Indeed, according to my information, at least one of the members of the sub-committee, the night before the Government meeting which finally decided the issue, was discussing a quite different form of words with a delegation he met. If that is an indicator of how little concern was being shown by the sub-committee to getting it right, it is no surprise that the Government have ended up in the present mess.
This confusion also serves to make the point that it is almost impossible to legislate for a complex set of circumstances by seeking to insert one sentence into the Constitution. The ultimate outcome of the so-called "Pro-life Amendment" foisted upon us in 1983 is further proof, if proof is needed.
As a result of all this cheap internal politics, the Government are proposing to add words to the existing provision of the Constitution, so that, in toto, Article 40.3.3º would read as follows:
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. 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 which gives rise to a real and substantial risk to her life, not being a risk of self-destruction.
According to statements made by the Government this wording accepts the test set out in the Supreme Court decision in the X case, in respect of everything except the threat of suicide. Of course this is a distortion of what happened in the Supreme Court. The net, basic, effect of the Supreme Court decision in the X case was that an abortion is permissible in this jurisdiction in certain circumstances defined by the court.
The bottom line effect of the amendment, whatever Government Ministers may argue is this: if this amendment is accepted, the Constitution will provide for the carrying out of legal abortions in certain circumstances. The principle of legal abortion is, therefore, being proposed for insertion into our Constitution. However, the situation is not nearly as simple as appears from this description of the effect in principle. The circumstances in which abortions may be carried out are far from clear — and it is entirely possible that the amendment, as it is drafted, may in fact render illegal certain operations which may be lawful now.
Almost every single word in the Government's proposed amendment is loaded with potential meaning. No one can predict at this stage whether or not this issue will become the subject of litigation in the future, or what the result of litigation will be. What is clear is that statements of "Government intent" are a meaningless basis for predicting the outcome of any future test by the Supreme Court. The words will be judged on what they mean, and not on what the present Government would like them to mean.
The principal dangers in the form of words proposed by the Government lie in the following words: "necessary", "save", "as distinct from the health", "disorder", "not being at risk of self-destruction". The potential meaning and consequence of each of these words, both individually and taken all together, could place many women at risk.
The word "necessary" in this context implies restrictiveness. The essential meaning of the word is to imply that terminations would only take place where they are absolutely unavoidable. While many would agree with this in principle, in practice it could lead to situations where necessary terminations are delayed until a medical emergency has occurred.
This is compounded by the use of the term "save the life". It is easier to understand the potential meaning of this term if it is contrasted with an alternative — for example, "protect the life". One protects someone's life from the probability of a medical emergency happening in the future. One saves someone's life from the consequences of that emergency. For instance: a woman with cardiac disease becomes pregnant. Her doctor is satisfied that at some stage during the stress of a pregnancy, her life may be at serious risk from a heart attack. In a regime devoted to protecting her life, immediate or early termination of the pregnancy would be an option. In a regime aimed at saving her life, termination could also be an option — but perhaps not until the heart attack was imminent or had already happened.
The phrase "As distinct from the health", has attracted so much comment and apart altogether from the innate offensiveness of this term, which implies that the health of women is not an area of concern, and is redolent of a controversy in this State forty five years ago, the use of this term is very dangerous for women.
To take a similar example, this time involving a woman suffering from high blood pressure, if it was the medical opinion in her case that she was unlikely to die as a result of a pregnancy, but was at serious risk of a debilitating stroke, it might not be possible to recommend a termination — since it would be her health, and not her life, in the literal sense, that would be at risk.
One could go further. The use of the term "as distinct from the health" could also rule out operations that would be perfectly legal now, if they were necessary to save the health, as distinct from the life, of a woman. In other words, in any situation where it is "merely" the health of the woman that is at risk, both "direct" and "indirect" abortion could be illegal.
To take an example. Suppose a newly pregnant woman is involved in a serious car accident, which involves extensive damage to her spine and lower back, internal bleeding, and so on. While her condition can be stabilised and maintained, extensive and immediate surgery is necessary to ensure that she will walk again. There may be the risk that the foetus in her womb will be inadvertently killed or damaged in the course of the surgery. This would be what the "pro-life" movement call an indirect abortion. It is only necessary to save the health, that is, the ability to walk, of the mother. It is entirely doubtful that it could be regarded as legal under the proposals put by the Government before this House.
Taken together, these phrases "necessary to save the life, as distinct from the health, of the mother" also mean that there will be a number of grey areas, where it is impossible to be certain that mothers at risk to their health will be fully protected.
For example, if chemotherapy is withheld from a pregnant woman in the early stages of cancer, that will not, in the immediate sense, literally threaten her life, but it will aid the progression of the disease, and will almost certainly shorten her life. Since the proposal is to allow women's lives to be "saved" rather than protected or prolonged, it is entirely arguable that this provision will rule out terminations in "life-shortening" situations, and allow them only in immediate "life-threatening" situations.
The use of the word "disorder" is referred to in the explanatory document circulated by the Government as being necessary to include ectopic pregnancies. It appears that the Government intention is to rule out all forms of psychological and psychiatric disorders. In reality, some such disorders do have "life-threatening" and/or "life-shortening" physical manifestations — anorexia nervosa, for instance, can be a very dangerous physical condition, even though its origin is psychological. Acute or chronic depression can also have dangerous physical consequences for its victims.
Finally, the Government have ruled out the possibility of a termination based on the "risk of self-destruction". This appears to be a blanket ban — no matter how imminent or certain the risk is. It denies a termination to the woman or girl who threatens suicide, but it also denies it to the girl who is in a suicidally depressed state and has already slashed her wrists twice.
This ignores the fact that any decision-making process involving the provision of terminations on the grounds of threatened suicide would involve psychiatrists, psychologists, and possibly social workers, and would have to take account of a wide range of factors.
In this connection, I have to say that I regard it as both wrong and unacceptable that the profession of psychiatry appears to be treated in this debate as if the opinions of that profession were in some way less valid than those of physicians or obstetricians.
There has been a great deal of sneering at the notion of a woman or a girl being a genuine or potential suicide risk, as if it were some kind of excuse. There has been too much rumour-mongering, and too much innuendo, about the circumstances behind the X case, as if we should not be expected to accept the facts already accepted by a judge of the High Court and the entire Supreme Court.
Only last night, on the "Questions and Answers" programme on RTE, an eminent doctor needlessly and mindlessly repeated the myth that these circumstances were "manufactured". The truth is that there is a substantial body of literature in this whole area. That literature shows quite clearly that suicide is an occasional outcome of refused abortion. The literature also shows that suicide among pregnant women and girls has fallen in those jurisdictions which permit abortion on psychiatric grounds.
A great deal of the literature is of course subjective, but it is also instructive, and perhaps, it is especially relevant to us. One eminent study, for example, concluded that "the awareness of deviance from the norms of the social group may make a suicide attempt or threat more likely".
To put it another way, if a girl is young, or single, or the victim of a sexual assault or incest, and becomes pregnant, she is going to be far more vulnerable to psychological or psychiatric damage. That damage can be compounded far more by her religious or cultural beliefs, or the beliefs of those whose support and approval she needs, than it would be by, for example, her financial circumstances. A girl in this situation, even if she is surrounded by love and affection, can find herself totally alone.
Even though the circumstances of her pregnancy might involve no willing participation on her part, she can come to believe that she has betrayed not only her loved ones, but all the values they have tried to instil. It is when that girl is entirely alone, isolated from support and marginalised from those she cares about, that she is most at risk. Are we seriously going to say that she does not matter? If we make our law as inflexible as we are proposing, that is precisely what we are doing.
I have a daughter, and there is no law in the land that would prevent me from reaching out to my daughter, or I hope to any child in trouble, to help in any way I could to put that trouble right. I am not unique — far from it. Many Members have children, and all of us represent children as much as we represent their parents. All of us believe, and want to believe, that if any of our own children need us, we will be there for them.
What that means is that we must recognise, no matter how painful it might be, that there are times when the only way we can relieve pain and suffering, and remove risk to children, is to rely on the advice of psychiatrists and other professions who can see too clearly the danger they are in.
Under the Government's Bill, terminations of pregnancy will never be allowed in the case of victims of rape or incest — unless of course those victims are also suffering from some highly dangerous physical illness, which threatens to kill them in the short-term.
The reality — and it is a reality that we must face as parents as well as legislators — is that there are some circumstances where rape and incest can result in life-threatening psychiatric conditions. It may be unpalatable, but unless we want to place young girls, already victims of monstrous injustice, at further risk, we will delete this provision.
The Government are proposing that no legislation will accompany this constitutional change, even though we now know that all the legal advice available to the Government is to the effect that legislation is also necessary.
A failure to legislate would place doctors in the position of being the sole arbiters of what was or was not a constitutional protection.
They would have no immunity or idemnity in making these decisions. They would have no guarantee that they would not be prosecuted for procuring an unlawful miscarriage if anyone disagreed with their decisions. They would have no guarantee that they would not be sued if they refused to arrange a termination and the result was the death of a mother.
This is an impossible situation. In addition, legislation is also necessary to set out the services to which women would be entitled if the amendment were carried. In short, passage of this amendment cannot absolve the Government from the responsibility to legislate, so clearly spelled out in Mr. Justice McCarthy's judgement in the X case. We should remind ourselves of what he said:
In the context of the eight years that have passed since the Amendment was adopted... the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case.
In future, they will have even fewer guidelines, if these dangerous words are inserted into the Constitution. Mr. Justice McCarthy also went on to say in his judgment that:
Legislation may be both negative and positive: negative, in prohibiting aboslutely or at a given time, or without meeting stringent tests; positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family.
Are we to prove yet again, by passing this Bill, that this House is very good at prohibiting, and hopeless at providing? Are we to prove yet again the this House is prepared to ignore its responsibility to encourage, to comfort, and to plan, in favour of taking the easy way out?
The drafting of the provisions in relation to travel and information is inadequate, and does not cover the "copper-fastening" promised by the four Party Leaders in their joint declaration. In regard to the substantive issue, the words proposed by the Government have a number of consequences that are not envisaged within their declared intentions. While the words do enshrine the principle of legal abortion in the Constitution, one of the practical results could be to rule out operations that are legal at present.
In summary, the Government's proposals on the substantive issue could prohibit termination of "life-shortening" pregnancies; "health-threatening" pregnancies and pregnancies which are likely, or certain, to cause the mother to commit suicide.
No account is taken in the words to the right of women to have their health and welfare fully protected; the words make those rights secondary to the rights of the foetus.
The complexity of the issue, the failure of the constitutional amendment to address those complexities, and the difficulty of drafting a constitutional amendment that would address them adequately, make it infinitely preferable that this whole issue be addressed through legislation. Indeed, it is almost certain that there is no form of words that will not lead to further confusion and litigation in the future.
Our Constitution is based on the underlying principles of prudence, justice and charity. It was prudence, justice and charity that informed the Supreme Court judgement in the X case. In prudence, justice and charity, I say that it is impossible to recommend support for this dangerous, divisive and potentially cruel amendment. I hope that, in the course of this debate, over whatever number of days and nights it takes place, the Government will change their mind, that they will see the error of their ways and realise that the Fianna Fáil Party do not alone contain all the wisdom in relation to this issue.
