An Bille um an Dóú Leasú Déag ar an mBunreacht, 1992: An Dara Céim (Atógáil). Twelfth Amendment of the Constitution Bill, 1992: Second Stage (Resumed).

Atairgeadh an Cheist: "Go léifear an Bille an Dara Uair."

Question again proposed: "That the Bill be now read a Second Time."

Atógadh an díospóireacht ar an leasú a 3:

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 chinnfidh an Dáil, tar éis don Dáil 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".

Debate resumed on amendment No. 3:

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 Dáil, after the Dáil has first discussed, up to and including Committee Stage, legislation designed to elaborate on the practical implementation of the provisions of this Bill".

—(Deputy Shatter.)

Minister for Industry and Commerce (Mr. O'Malley)

Before the debate was adjourned I was saying that the 1983 Amendment had inserted a requirement in the Constitution that the life of the unborn be protected. I said that this was a laudable aspiration. I went on to say that it was a right qualified in its forumlation by the necessity to have "due regard to the equal right to life of the mother". It was, and it remains, the responsibility of this House to provide the detailed legislation which is necessary to strike the balance between such rights. This fact was envisaged in the 1983 Eight Amendment where the State guaranteed "in its laws to respect, and, as far as practical, by its laws to defend and vindicate that right". As the recently tragically deceased Mr. Justice Neil McCarthy pointed out in his judgment in the X case, we in this House have been remiss in our duty by failing to provide such legislation which, as I said, is specifically required by the terms of the Constitution.

In contrast, the Fourteenth Amendment of the Constitution Bill, dealing with the question of information, which is also before us, is consistent with this requirement. It inserts a right in the Constitution and leaves to legislation its detailed control. The Minister for Health has given the House an outline of the likely terms of such possible legislation. That is why, no matter what the people of Ireland decide in December regarding the Twelfth Amendment on the so-called substantive issue, the Progressive Democrats believe that legislation will be essential to guide doctors in dealing with the real life cases that simply will not readily comply with the formal constitutional text now proposed. To do otherwise would force the Supreme Court to continue to have to make the law on a case by case basis. Given the reality of the Supreme Court judgment, and irrespective of the outcome of the constitutional referenda on 3 December, medical terminations will be lawful in Ireland in certain limited circumstances. Are we now to allow this situation to apply without any legislative control? How are our doctors to decide on the hard cases, the border line cases and the emergency cases? Will they have to endure a threat of having their judgment challenged after the fact in some criminal suit? Will the woman's life be put at risk otherwise because they are unsure of their position? How are doctors to define the elusive dividing line between life-threatening and life-shortening situations? It should be clear to everyone, therefore, that a legislative framework will be required, irrespective of the decision of the people on the Twelfth Amendment on 3 December.

In this context too it is important to remember that there is little point in asserting that such and such a medical procedure will not be affected by the proposed constitutional amendment. I repeat that the reality is that when the constitutional provision is subject to interpretation by the Supreme Court, the judges can only adjudicate on the basis of the words in the Constitution and not by reference to any other words or documents, no matter how well-intentioned such clarifications may now seek to be.

A particular concern about the wording before the House is the proposal to totally exclude the danger of self-destruction or suicide from any consideration in a possible medical termination of pregnancy. I am aware of the arguments for such a provision and certainly it would be unacceptable to allow a mere plea of suicidal intent as a general basis for seeking a termination, but I believe that the particular proposal before us is too absolutist a position.

First, suicidal disposition was the basis on which the X case was decided. Had we such an exclusion in the first place, at that time, the Supreme Court would not have been able to reverse the Costello judgment, and the injunction against the 14 year old travelling would have remained. People must ask themselves would they really have supported the continuation of such a situation? Do they believe that the Supreme Court judges were correct in lifting the injunction?

Second, I believe that the real danger of suicide as a basis for termination could be adequately controlled by legislation so as to prevent it becoming an abused pretext for the availability of abortion in Ireland. Article 40.3.3º already provides the basis for such legislation. Whether or not we like it, there will be some genuine cases of intended suicide, however few.

Since the Supreme Court decision in the X case there has been no sudden rush to the courts by women looking for an abortion on the basis that they are suicidal. This is not a particular problem now, and there is no pressing reason to exclude it constitutionally as a basis for a termination in every case in the future. We must be willing to consider the fact that some very unusual suicide case may arise where the woman cannot for some reason or another leave the jurisdiction, and where a real and unavoidable risk of self-destruction exists. For example, a young pregnant girl may become severely anorexic after a multiple rape. Such a girl, with her unborn, could be condemned by this Amendment, with the hands of the Supreme Court tied, thus preventing any sensible intervention to save her life. I would seriously question the basis for putting such an absolute ban in our Constitution. I believe that it is undesirable.

Another major concern about the proposed Amendment wording is the distinction to be drawn in the Constitution between "life" and "health". This could take away from doctors, from the courts and from this House any right to deal with those hard cases which will arise.

No one can really know whether a pregnancy which will, as a matter of probability, drastically shorten and devastate a woman's life, will be permitted to be terminated under this proposal. It seems to me that the wording is calculated to try to distinguish between life shortening and life threatening pregnancies and to exclude completely "life shortening" risks as a ground for termination.

This provision scarcely reflects reality and fails any objective analysis. Furthermore, it is not easily interpreted. The distinction between life threatening and life shortening is clearly problematical. Are we as a people to say to some women: because this pregnancy will not kill you now but will only leave you immobilised, maybe a physical or mental wreck, and perhaps with a dramatically reduced life expectancy, you may not have a particular treatment?

We should also recognise the fact that the proposed Amendment will put at risk the position of the existing Article 40.3.3º in so far as it removes the protection of Protocol 17 of the Maastricht Treaty by modifying the Article which the Protocol protects. Furthermore, it is accepted by all that any new insertion will not be protected from scrutiny by the European Court of Justice. It is somewhat doubtful whether or not our European partners would agree to change the Protocol to protect the proposed Twelfth Amendment if passed.

I now wish to turn briefly to the Thirteenth and Fourteenth Amendments of the Constitution Bills. These honour the commitment given by the four party leaders at the time of the Maastricht Referendum to provide travel and information rights. The Progressive Democrats have no hesitation in supporting the passage of these two Bills in this House and in recommending them to the people for endorsement. We support them because we believe that travel and information are basic human rights, which should not be limited by the State except for the most pressing and exceptional of public policy reasons.

It is, I believe, unacceptable to attempt to restrict travel to avail of services legally available in other states and similarly wrong in practice, and in principle, to ban absolutely all information about such services. By denying information to women about abortion in England, we are also ruling out the possibility that comprehensive, non-directive information could lead to some women rejecting that option.

If such information becomes available only when a women arrives at the clinic in England, after she has undergone the trauma of deciding on an abortion; put together the money necessary for the treatment and, perhaps, contrived a pretext for her travel, she may simply not even want to consider any alternative course of action, such as keeping the child or having it adopted. We therefore support the passage of these two Bills in this House. We welcome the cross-party support for them and invite the people to support them in the forthcoming referenda.

The three measures before the House arise out of decisions of the Government made after consideration of the issues involved by a sub-committee of the Cabinet, of which I was a member. Because they are Government Bills, and because the Government meet and act as a collective authority, or ought to do, their members, including myself, are bound to carry through their decisions or else resign from the Government.

In present circumstances, therefore, I consider that it would be inconsistent with membership of the Government for us now to vote against any of these Bills in the Oireachtas. That, in turn, presents any member of Government who disagrees with the substance of any of these measures with a choice, to allow the proposal to go before the people who are the sovereign authority in our constitutional scheme of things for their decision, or to resign from Government and precipitate a general election.

The latter course of action would also prevent me and the other party leaders from honouring the pledge we gave during the Maastricht referendum campaign that a referendum would be held this year to restore rights of travel and information. The passage of the Bills will give all the people, including Irish women, the opportunity to pass judgment on these proposals. The Progressive Democrats as a party will collectively publish their analysis and advice on the measures proposed and I have no doubt that, as a political party, we will advise the electorate and our own supporters in clear terms during the course of the campaign.

The issue now before this House is as to whether the matter should be put before the people for their consideration. We are enacting nothing here in our consideration of these Bills. Unfortunately, the debate up to 3 December is likely to be divisive and will damage the cohesion of our society. A foretaste of the debate has already alarmed many, but to plunge the country now into an abortion election as it would undoubtedly be dubbed, would be unforgivable.

Minister of State at the Department of the Environment (Miss Harney)

Since this debate began yesterday, approximately 25 Irish women have travelled to Britain for an abortion. Since the X case last February, approximately 3,000 women have gone to Britain for an abortion and last year more than 4,100 Irish girls, according to official statistics, had abortions in Britain or Wales. These are conservative figures and this is the real and substantive issue in this debate. Unfortunately, nothing that is said in this debate will alleviate the plight of those women. Nothing said in this debate will save one single woman from travelling that lonely and isolated road for an abortion.

During the past few months many of us have been challenged to reconsider our view about certain matters. That does not come easy. Most people do not like the notion of abortion; in fact most people do not like to use the word "abortion" and the word "termination" is often used instead. However, for many it is the lesser of two evils. It is the lesser of two evils where a woman's life is at risk, where her health is seriously at risk, or if somebody has been raped or the subject of a sexual crime such as incest. It is also the lesser of two evils where somebody may take her own life. In these limited circumstances — and they are limited — the option of terminating a pregnancy should be available to Irish women in Ireland. In this debate, as in many others, we will continue to export our problem to Britain. Once again, Britain, will provide a solution to an Irish problem. However, if this country was geographically located 2,500 miles into the mid-Atlantic, if we were much further from Britain than we are and if it cost a few hundred pounds to get there, we might take a different approach to the issue we are discussing today.

When the X case arose I saw in this House, as I did in the country, a new awakening, understanding and sympathy in relation to the plight of that young girl and her family. I doubt if many people, particularly in this House, would not have chosen a similar route if faced with the same circumstances. That family were trying to do the best they could for their young rape victim, but instead of getting support and help they were confronted by the arms of Government and stopped from taking her to Britian for an abortion. Many people felt disgusted that the insertion of Article 40.3.3º into the Constitution in 1983 could have had that kind of consequence and, as a result, many of us have had to reconsider our approach to the issue.

Unfortunately, the new awakening and sympathy at the time of the X case has slowly ebbed and we have now adopted more polarised views. That is regrettable and it is particularly regrettable that over the past few weeks on many radio and television programmes — and, indeed, in the media generally — we have had to listen to men discuss the female anatomy in a clinical and cold manner, almost as if they were discussing an aircraft or something of that kind. I know many women found it offensive and many men also found it offensive. I would find it equally offensive if men were being discussed in the same fashion. I have not heard any of these men discuss the plight of the 4,190 girls who went to Britain last year for abortions. I have not heard them express the view that the men who impregnated these women should be more responsible for their actions because, unfortunately, while we do not have any statistics in Ireland as to why these women travel, we generally know that many of them make that choice because they believe there is no alternative.

It is a lonely, isolated, difficult decision and if we, as a country, really care and want to be compassionate then we must obtain the statistics. We need to find out who they are and why they go. I believe some of them go because they have been deserted and abandoned by the men who made them pregnant. They feel they have nowhere to turn, that there is no alternative.

I wish we had better support and caring services for those who find themselves in this position. It is interesting to note, for example, that in a study published in 1990 by Dr Stanley Henshaw it was found that the rate of abortion among Dutch women per 1,000 women in the child bearing years of 15 to 44 was 3.6 per cent, whereas the rate in Ireland for the same year was 4.8 per cent. These were Irish women going to Britain for abortions. We have a 1.2 per cent rate higher than they have in the Netherlands where abortion is freely available. The reason the rate is so low in the Netherlands is because they have a proper system of sex education. They have widespread access to family planning, 80 different counselling centres for people with sexual problems, or who need crisis pregnancy advice and so on. That is the reason the figure is so low and if we really want to make a dent in the high numbers of Irish women seeking abortions abroad, we need to establish a similar programme here. We need proper pregnancy counselling, widespread availability of family planning services, proper sex education and greater support and care services for those who find themselves pregnant. There is no other way of decreasing the level of abortions among Irish women abroad.

I regret very much that this debate is taking place almost as if there was an emergency. Midnight sittings of this House tend to occur around budget time, or perhaps towards the summer as we approach the recess, or on other occasions when emergency legislation has to be rushed through the Oireachtas. I do not believe the legislation we are discussing at the moment can in any way be described as emergency legislation. There is no demand in this country for a referendum on this issue, on what is called the substantive issue of abortion. In 1983 most people thought they were voting for legislation that would not allow abortion in most circumstances. They felt that they were fooled then and I do not believe they want to be fooled now. Most people are saying, "We elected you the legislators; it is up to you to make and take decision on our behalf."

Many speakers in this debate and many outside the House have advanced the theory that it is right to let the people decide. I have no principled objection to letting the people decide but we do not let the people decide how much tax they would like to pay. If we are closing down a hospital or restricting health services we do not consult the people in that way. We are elected to make tough and difficult decisions and there is no way that the complex issue of abortion can be dealt with in four or five lines in our Constitution. My voting Yes or No on 3 December will not adequately deal with the complex issue of abortion. That is why I regret very much that it is being approached in this manner.

During the Maastricht debate the leaders of the main parties came together and most people applauded that. They felt it was a sign of maturity on the part of the Oireachtas and politics generally. The progress that was made then towards achieving a consensus has been shattered in recent days and the kind of new departure that most people felt was emanating from Leinster House unfortunately has gone. I regret that very much. I also regret that a moral issue such as this is dealt with in a rigid Whip way in this Oireachtas. We are one of the few Parliaments in the civilised, developed world that treats these issues in this way. Most civilised Parliaments allow free votes on what are regarded as moral issues. This is a moral issue. People have very different views and they should be allowed to express them freely in the way they vote in this House.

Those who say we must have a referendum because the Legislature cannot be trusted is offensive to Deputies and Senators and it is an insult that we ourselves are compounding by agreeing to go down this route. The recent Family Planning Bill passed in this House certainly would not give any indication that the Legislature is about to open the floodgates. It was a welcome development in some respects but certainly could not be regarded as being extremely liberal. There are those who say that if we do not adopt this approach and have a referendum, and if we do not accept these words, that in some way we will have abortion on demand. It is not a choice between these words or abortion on demand and I and many other people find it insulting to be accused of wanting abortion on demand. Nobody in this House, to the best of my knowledge, wants abortion on demand or believes that abortion should be used as a form of family planning. People genuinely want to see it available only in the hard cases that I mentioned earlier.

My problem with these words is twofold. I find it very difficult to accept that we can distinguish between health and life. Recently I was made aware of a case by the extended family of the woman involved, a woman from the west who gave birth to a child three and a half years ago. During the course of her pregnancy she developed toxaemia. As a result of that the woman has been in a coma ever since. In a situation like that, the choice of terminating the pregnancy would not be available under these words to that woman, or to somebody in similar circumstances, and I regret that very much. It is heartbreaking for her family and her friends to see the condition that woman is in as a result of developing an illness during her pregnancy.

I wonder who will decide whether the life of the woman is threatened. Will it be the obstetrician? Will it be the cardiologist if the problem is cardiac hypertension? Will it be an oncologist or perhaps a combination of all three? I believe that after this legislation is introduced many doctors will be afraid to carry out any termination. They will be afraid they will leave themselves open to litigation by, perhaps, the husband or some other interested party, because no doctor can ever say with certainty that somebody is going to die in one month, six months or nine months. These words seem to introduce a degree of certainty that is just not possible. It is not medically possible ever to say if somebody is definitely going to die or when that might happen.

It is most regrettable that we have approached the issue in this way and I believe many women are deeply disturbed. I regret that the Council for the Status of Women, which is an umbrella body representing 80 different women's organisations, and the Commission for the Status of Women, appointed by the Government two years ago to examine the inequities that still remaim in our society as far as women are concerned, were not adequately consulted. If this was an issue that affected the construction industry, or the farming community, or the vintners, for example, would we be approaching it in the same way? Would there not be widespread consultation? Would people not be going out of their way to ensure the lobby was looked after? Why should women be singled out and treated differently?

Mrs. Barnes

We are not trusted.

Miss Harney

If there were more women in this House we would obviously make a bigger impact. We have 13 women but, unfortunately, as 13 women we do not seem to matter when it comes to dealing with issues of this kind. I believe that around this country the approach being adopted on this issue is not widely supported, even by those who do not wish to see abortion in Ireland. Most people realise that it is not a political issue, should not be dealt with in a political way and that nobody wins votes on this kind of issue. People see it for the personalised, difficult issue that it is. It is a moral issue and one that personally affects people in a very special way. It is only when people are affected or know of somebody who is personally affected that they begin to think out the issue for themselves. Many people do not even want to have to think about it. I believe we have let women down but we have also let ourselves down and we have let society down.

That brings me to the question of the vote. I am one of the few people in this House who on one occasion actually voted against my party and I did so because I felt very strongly about the issue that was involved. I did not do it lightly and it is not an easy thing to do. Obviously, as someone who is very concerned about this issue, I contemplated doing the same on this occasion and I asked myself what would be the consequences of doing that. Would it do any good? Would it cause a general election? It is not that I do not think the issue is not important enough because I believe it is, it is important for women and for the kind of society we are, but I believe an election on this issue would be extremely divisive, it would turn back the clock, to use a well quoted phrase and it would achieve nothing. It would be an abortion election and people would be branded as abortionists if they wanted to provide a sympathetic and caring response in particular circumstances. For that reason in particular, and because no good could be achieved, I do not believe it is the kind of issue in which people should vote against the approach being adopted by the Government. The consequences of doing so obviously is a general election. That might suit some people; perhaps that is what some people would like. Some people are cynical enough to want to win votes on the issue of abortion, which affects families and women in a special way.

It is a shame in 1992 that we are still approaching these issues in the way we are. It is a shame that we do not have proper family planning, proper pregnancy counselling or any research on the women who go to Britain for abortion. We live in a country where only two weeks ago somebody who was convicted of raping an 18-month-old stepsister was given a suspended sentence. What kind of society is that? We need to make many changes. We need to get more women in key, decision-making positions and we need more women in Cabinet.

I am very proud of the role that my two party colleagues played in Cabinet. Both tried very hard, the Leader of my party, the Minister for Industry and Commerce, at the Cabinet sub-committee and both my colleagues in Cabinet. I regret they were not successful. A mistake was made. We made a mistake in 1983 and we are making another one now. It is only a question of when the issue will be before the courts again and we will be expecting them to make a decision for us.

The Supreme Court let this House off the hook last February by allowing that girl to go to Britain. The irony is that if they had prevented her from going this issue would probably have been properly sorted out last March. We probably would have had a referendum on travel and information and we would not be dealing with what is called the substantive issue. There was a great sigh of relief everywhere when they made the decision to let that girl go.

I detect among members of all parties no great interest in getting involved in this campaign. Politicians want to stay out of it. They were sickened the last time and they do not want a repeat of what happened then. In the last campaign there was division in almost every group in society — teachers for and teachers against, doctors for and doctors against, the handicapped for and the handicapped against. It was bad for the country and it was bad for politics. The road we are travelling now is equally bad for the country and bad for politics. That is why I hope many politicians will adopt a sensible approach, unlike the approach adopted on the last occasion. I appeal to those politicians who take a different view from those of us who want to deal sympathetically with rape and incest victims, and with those who we could commit suicide and whose health and life was at risk, not to brand us abortionists. We are not abortionists. We are trying to become passionate and caring people, understanding the very difficult plight in which so many women, particularly young women, find themselves.

We recognise the real possibility of people committing suicide. That is why our psychiatric institutions have so many patients who have been committed against their will. They have been sent in because they are a danger to themselves. For an under-age girl who has been the victim of rape or incest there is a real possibility that she will commit suicide.

The Supreme Court has been lauded in this House. The words of Mr. Justice Finlay are the words which will be put before the people in the referendum, yet we are trying to restrict in this referendum the good decision made by Mr. Justice Finlay and the other judges. On the one hand we are praising his words and using them as giving authoritative guidance in this area, but on the other hand we are trying to restict the consequences of the decision made by the Supreme Court. I do not see the logic in that approach.

Voting as I intend will be a very painful and difficult thing for me to do. I do not say that lightly. I regret very much that we are placed in this position and that it is a choice between an election or voting this way. That is not the way a modern parliament in a developed country should approach this issue. I long for the day when these kind of moral issues will be the subject of a free vote in all parties. That will be good for democracy and good for politics and it will be particularly good for those in all parties who often find themselves having to vote in away they would not wish. We should not be afraid to allow people freely to express their conscientious view in a vote of this kind.

Miss Flaherty

I will be sharing my time with my colleagues, Deputies Boylan, Harte and Belton.

An Leas-Cheann Comhairle

That is already provided for.

Miss Flaherty

I am glad to have the opportunity to speak in this very important debate and to indicate my support for the Bills on the Thirteenth and Fourteenth Amendments of the Constitution and my very deep concern about the implications contained in the Twelfth Amendment of the Constitution Bill. I will confine most of my remarks to the Twelfth Amendment because I am extremely concerned that this removes the Supreme Court protection of the lives of women. Women in Ireland stand protected by the Supreme Court decision in the X case which clearly states that a woman's life is protected in all cases of real risk. Unbelievably, if the substantive amendment is passed by this House and then by the country, that clear protection will be diminished in two substantial ways.

In March this year I awaited with anxiety the outcome of the appeal to the Supreme Court. I remember leaving Leinster House and being accosted by a journalist who had the information that the Supreme Court had decided, on the basis of the right to life of the woman, that the young victim in the X case could travel and have an abortion. Apart from sharing the general feeling of relief that her tragedy was being resolved to the degree that she and her family considered appropriate or possible, I also felt a general sense of relief, perhaps because of the threat of which I was not overly conscious. I felt very clearly a general threat to women and I welcomed the Supreme Court's statement that where the lives of women, particularly women of child bearing age, were at risk, their lives would be protected by the State. I had three pregnancies in the previous nine years so it was a very real reassurance for me and one which I would not lightly let go.

I watched with interest political developments following that decision and the effects to reach consensus. I hoped that consensus could be reached between all the parties. We waited throughout the summer, following the first series of meetings with the leadership, for the proposals of the Government. When they emerged in the past few weeks I was particularly concerned that the amendments proposed by the Government rowed back so far the protection given to women as a result of the Supreme Court decision. The extraordinarily inept frightening inclusion of the qualification regarding a woman's health thrust ambiguity and uncertainty back into the area of medical treatment. The Minister would like us to believe that this is not so, but speaker after speaker inside and outside the House has reiterated that view.

We must remember that pro-life groups will be policing this change if it comes about. They reassured us in 1983 that certain things would not happen, that young women would not be stopped from travelling abroad and that books would not be removed from our libraries. We have learned that the worst scenarios do become reality. The Minister has tried to reassure us. I find his reassurances as hollow and worthless as in 1983. It is incomprehensible that the Fianna Fáil Party — and they stand on their own in this — can with such certainty recommend a wording when on all sides of this House and outside voices are raised, including the voices of their partners in Government, questioning seriously the consequences of the approach they are suggesting.

I am saddened that some Fianna Fáil women have paraded in this House to defend the indefensible. I listened with dismay, with some anger and with a great sense of disappointment this morning to the contribution of the Minister, Deputy Maire Geoghegan-Quinn, who disparaged the contribution of our spokesman, Deputy Shatter, who, last night, spoke very courageously and lucidly about the possible consequences of the wording proposed. The same Deputies, and, indeed, perhaps Deputies O'Malley and Harney, who were part of the Government in 1983, disparaged then the arguments put up by the Deputy they are disparaging today, but every one of his arguments proved to be right. Deputies would do a great deal more justice to Deputy Shatter by listening to his contributions.

The Minister this morning also questioned the description of the substantive issue. It is a very substantive issue — a matter of life and death — I am concerned that she could be so certain that future life threatening experiences will not be more difficult to resolve as a result of this amendment.

The Minister for Justice, in his speech yesterday, was full of contradictions and inconsistencies. In referring to the Supreme Court judgment he said that the effect of it 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 earlier part is doing all the Minister seeks to achieve. In his reference to the Supreme Court decision he says that it achieves all he sets out to achieve in his amendment. It already allows interventions to protect the life of the woman but not protect the health of the woman. Why fix it, if it is not wrong? The words suggested make a difficult situation worse. I and many of my colleagues in the House know how difficult it has been for women to get the kind of treatment they need on occasions under existing law. There is no doubt that the Minister's proposal worsens the situation.

The Minister for Industry and Commerce, Deputy O'Malley, in his speech said that the distinction to be drawn in the Constitution between life and health is another major concern which would take away from doctors, from the country and from the House any right to deal with hard cases which will arise. The Minister referred to there being a spectrum of concern, a spectrum of gravity at the point where the danger moves from one of health to one of life and he said that his concern had been expressed to him by doctors. The Minister dismissed all that and reassured doctors that they will be able to do all they want.

An eminent obstetrician in this country told me of a case which occurred under the old wording in which a woman with cancer of the uterus presented to a rural obstetrician who identified that she would need an operation and he then consulted his lawyer to see how he stood in relation to the existing pro-life amendment to the Constitution. He was advised that he had serious difficulties and did not provide the treatment for the woman. The woman then went to Britain and had an abortion and came back and had her treatment. However, we do not know what further risk there was to her life in having an abortion which was not directly related to the treatment or what impact that had on the progress of her disease or on whether it might have presented a very real risk to her life. These areas are extremely difficult as they are. Inserting the additional amendment adds confusion. I would urge that it be removed. The amendment should be withdrawn and put aside or at least postponed.

The other major amendment to the Supreme Court decision is the elimination of the possibility of medical intervention in the case of suicide. I accept that the reasons given for this amendment are more substantial, in the context that none of us wishes to see anything done which would treat life lightly and we wish to the maximum reasonable extent possible to protect the life of the unborn and create a society that values, cherishes and protects life. That is the kind of society I wish to create, but it does not mean that I have to turn my back on very real situations. If we accept the Minister's proposal we will have turned our backs on the X case which led to all of this. We have also turned our backs on not just one Lovett sister but on two Lovett sisters. The hard cases of which the Minister talked have occurred. In the early part of his speech in relation to the entitlement of women to have medical intervention when necessary, he said:

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.

I welcomed that affirmation of life but the theme did not remain central to the Minister's contribution. There were very serious contradictions in the case put forward by the Minister yesterday. In the past few years we have had public cases amounting to more than one in a million. How could the Minister say that, and then turn his back on the consequences of confusion as a result, due to doctors having to make sure that they only treated women at the point where gravity had moved to life threatening rather than life shortening. It is asking too much and doctors will inevitably err on the side of being cautious.

The Minister now seems to believe that this general right to life excludes women dying from delayed medical treatment or suicide, and therefore the general concern which the Minister expressed at the beginning of his speech and which most of us welcomed rings very hollow indeed.

Having listened to the outline of the PD position on the issue I do not want to make political capital as they are obviously finding this very difficult. One has to admire the frankness with which Deputy Harney has shown how difficult they find this but I do not know how they can stand over the extraordinary political gyrations when they can identify such fundamental flaws in the proposed amendments. I cannot understand how they can risk the passage of such unsafe wording by putting such a flawed wording to the public. Deputy O'Malley was part of the Government responsible for the amendment in 1983 and I welcome the fact that on this occasion, unlike the Minister, he has learned that this area is one where there can be no absolutes. This is a fundamentally complex area where there are two interconnected lives, it is never going to be simple and it is uniquely female. Anybody who tries to ascribe certainties to it is not learning from previous mistakes and is playing the most serious games with the lives of women.

I share the view of Minister Harney that the appropriate way to deal with this is to forget this amendment and proceed with the amendments on travel and information on which there is substantial agreement in this House. We should then look to see how we can make this a genuinely pro-life society. We must look to see why, with our high moral tone, with our strong commitment to religion we still have such large numbers of women of all ages going abroad to seek abortions. We must see what we can do to change that and support women in such crises so that more of them can carry on with their pregnancies. That would be far more valuable work.

While there is a variety of views in Fine Gael, we all believe that this amendment is so flawed that some say it should be postponed, many others say that it should be dropped, and that we should proceed with legislation alone or legislation prior to a referendum as a far more appropriate way of dealing with this complex issue. I urge the Government to consider these appeals. The view on all sides of the House, including the Government side is that their approach to the Twelfth Amendment is completly wrong, that they should seriously think again and withdraw the current proposal.

Mr. Boylan

I welcome the opportunity to make a very brief statement on this legislation. I am totally opposed to holding a referendum especially at this time. I am opposed to it on the grounds that this is being rushed through the Dáil as can be seen by the number of Deputies on my side of the House who are anxious to make a contribution. They have a perfect right to do so and to be given ample time to put their point of view, but they are not being given that opportunity.

I am opposed to the manner in which this is being foisted on the people and the manner in which it has been presented. They are not being given a clear choice about whether they are for abortion or not. The proposal being put before the people is a choice between limited and liberal abortion. That is an insult to people who are totally opposed to this and who have a perfect right to that viewpoint. I am opposed to abortion in any shape or form. It is wrong and cannot be condoned.

There must be something radically wrong in a society where 4,000 women and young girls found it necessary last year to leave this country for an abortion. A pregnancy outside marriage can happen in any family. It can happen quite naturally when a couple are keeping company. That is when the family's strength counts and that girl is supported by the family through that difficult circumstance. Obviously people are reneging on their responsibilities to educate and advise young people. Far be it from me to preach or lay down any doctrine but I think the Churches, all of them, have been sadly lacking in their duty in that regard. There is a trend towards social liberation in this country now as witnessed on our television screens every night at an early hour when young people are watching. Young people believe that this is the way of life. They get into these difficulties and then they are abandoned. It is sad, but abortion is not the solution. That only adds to the problems. Abortion is not the way to deal with the problem. If abortion is wrong in this country it is wrong outside it. In that regard, I take on board the contributions of the Progressive Democrats. I am amazed that they are being browbeaten into standing behind the Government with regard to these proposals. Deputy Quill stated at the weekend that she will be voting No on this issue in her polling booth in Cork. I say to Deputy Quill that if it is wrong in Cork it is wrong in Leinster House and let her come and explain that to the people in this country.

I am also annoyed at the Government's attitude to this referendum which is only being put to the people to create confusion and distract them from other issues that are affecting people and causing the effects that led to the need for this referendum. I mean the loss of jobs, the problems young couples have meeting their commitments and the problems of families with children in third level education who cannot come up with the necessary finance to support them. These young people are at third level institutions with hardly any money in their pockets, hardly enough to pay for their digs and their upkeep. This can only lead to difficulties.

I must also ask the Minister of State why this referendum is being held on a Thursday. Why not give the young people who will have to live with this legislation an opportunity of saying Yes or No to these proposals? Many of them will be at third level institutions away from their homes and will not be able to travel home between the hours of 9 a.m. and 9 p.m. Why is the referendum not being held on a Friday, or preferably on a Saturday, when all those young people will be at home in their constituencies and able to give their opinion through the ballot box as they are entitled to do? They are being denied that opportunity. They are being denied it for some particular reason that Fianna Fáil are afraid of. It is wrong. That is not democracy in operation. It is not too late yet. Everybody is opposed to 3 December as being too soon. Let it be left over until the spring and choose a date at a weekend when those young people are at home.

It may be all right for me to pronounce on it. My time rearing a family is over, thank God. The people who will be pronouncing on this will not be personally affected. They will be legislating on something that will affect coming generations and young people are not being given an opportunity to have a say.

There are a number of flaws in this. I do not want to take from the time of Deputies Belton and Harte so I will conclude by saying that this is wrong, that it is not too late to step back. It is doing untold damage. I am saying to my supporters and the people who come to me that they should vote No on this issue, rebuke the Government and show them for what they are trying to do. This referendum is an insult to the intelligence of the people. It is not acceptable and we as an elected body must reject it if we are to show any example to the people out there who are obviously looking for leadership.

Mr. Belton

This referendum was proposed as a result of the X case. Up to that time quite a few politicians in this House were satisfied with the Constitution as it stood. Listening to the Progressive Democrats speak about the difficult situation they now find themselves in, I wonder do they think about the difficult situation in which politicians found themselves in 1983. I was not there at that time but I have heard that politicians in this House were branded as being soft on abortion. As a result of all that, Fianna Fáil now find themselves in a very awkward political situation. They were very certain in 1983 and were very accommodating to groups that they thought would be of political benefit to them. Now they find themselves in Government and, as a result of the Supreme Court ruling in a very difficult situation. They had no choice but to put this issue forward out of political expedience, just as they have done in the past.

My party have advocated that more time be made available to discuss the substantive issue. I do not think anyone would quarrel with the suggestion that there should be the right to travel and that provision should be made for this in the Constitution of any civilised society or democracy. I also welcome the amendment dealing with the right to information. It would be a step in the right direction if a woman who finds herself in stressful circumstances or in a crisis could avail of an opportunity to have consultations and receive advice.

Some people dread what this referendum could mean in relation to the health of a woman. Women are entitled to feel this way. Indeed, I would feel the same way if a provision was to be written into the Constitution which would dictate what should be done in relation to my health in a given situation. I believe the Government have been too political, too slap-dash and in too much of a hurry to get the issue out of the way. We cannot deal with these matters in that way because there is too much at stake — women's health and the wellbeing of society.

Mr. Harte

Everything that has to be said in this debate has been said at this stage. However I would like to ask the Government, quo vadis, where they are going. In 1983, when Fianna Fáil were in Opposition they had all the answers and they made life hell for Deputies like myself who were conscientiously trying to find a solution to prevent abortions being carried out on the island of Ireland. Unless people lined up with those who had lost their heads and had become highly emotional in some way they were considered suspect. I should say that the Fine Gael Party which I was born into, which I supported as a young man and have spent half my life serving as a Dail Deputy are not now, never have been and never will be an abortionist party. I have absolute confidence in the present leadership and membership of the party that I have the honour to represent.

This debate is not about who is in favour of abortion. I recognise that members of the Fianna Fáil Party are as anti-abortion as I am and that the same is true of members of other parties in this House. What we are trying to do is prevent abortions being carried out in this country because abortion is wrong and cannot be defended. It is not right to take the life of an unborn; that is wrong in all its forms. However it is equally wrong that a mother should die because her only crime was to have become pregnant. It makes little or no difference whether that woman is the mother of a young family or a teenager if her life is threatened and that is the dilemma we are faced with. How do we find laws to protect a woman in that situation?

The argument that is being made outside the House and which has influenced the Fianna Fáil Party, but not the other parties, is that the best way to deal with this matter is to hold a referendum. There appears to be an argument, however, over whether we are right to proceed by way of a referendum rather than by way of legislation in this House.

During the past few months I have had many friendly conversations with people who hold the view that the abortion issue has to be settled by way of referendum. I could only conclude, however, that they were so obsessed with the argument as to whether the matter should be dealt with by way of a referendum rather than by way of legislation that they lost sight of the real issue.

Let us consider not what may happen in the future but what happened in the past. In 1861, the Offences Against the Persons Act was introduced in Westminster. This was the law which prohibited abortion on the island of Ireland and it is still on our Statute Book. For some reason or other there were people in 1983 who got the idea that a referendum should be held to copperfasten the position and they were not prepared to trust the people they had elected to Dáil Éireann. In 1861, Westminster was anything but Catholic and was certainly not influenced by Irish thinking but it had Christians of denominations other then Roman Catholic who found a wording that would prohibit abortion for 130 years on the island of Ireland or, as happened, until the law was called into question as a result of the wording of the 1983 referendum. The Supreme Court passed its judgment on that wording in the context of the X case and it now seems that it made the wrong judgment rather than that the people made the wrong law.

I have heard some of the finest speeches that I have heard in my 30 odd years in this House during the course of this debate. I congratulate the members of my own party who have spoken and, I congratulate Deputy O'Malley and Deputy Harney in particular. I would also like to congratulate Deputy Howlin of the Labour Party and Deputy De Rossa, Leader of Democratic Left. While I would not agree with everything they said it is clear that they had given deep thought to this issue and were sincere and sympathetic. I am sure there are many in Fianna Fáil who could articulate the same thoughts and feelings but for some reason they have refrained from doing so because they are more influenced by popular opinion and by extremists who believe that the answer lies only in a referendum.

There is no talk in the North of Ireland about abortion: the law that was enacted in Westminster in 1861 is still on the Statute Book in that part of the island. Neither was there any talk about abortion here until 1983 but since then everything has gone wrong. I am sure that some lawyer in the future will drill holes in the proposed amendments to the Constitution.

Let me ask a few pertinent questions. What kind of society would we have if Great Britain decided that abortion should only be available to citizens of Great Britain? What kind of society would we have if the 5,000 young women who go to Great Britain each year for abortions wanted to have abortions here? How would we cope with such a problem? My own view as I have stated already is that abortion is wrong.

Long before it became a major issue of debate on this part of the island I counselled a young woman who was pregnant and talking of abortion. Having advised her that abortion was wrong I suggested that she see her doctor. After speaking to her doctor she went to a nursing home in Belfast and had her baby which was adopted. Everything was done as all of us would have wished.

However, I often wondered how I would have felt if that girl had died as a result of continuing with her pregnancy, having taken the advice of the doctor and myself. What right have I to tell a girl she should not have an abortion? If a young pregnant lady comes to me I will counsel against abortion and advise her to see her obstetrician. If she still has a problem she should consult her spiritual director and then make up her mind in the privacy of her home. At that stage it is not my business or that of anybody else other than the members of her family, and if the decision taken is the wrong one it is they who will have to answer for it.

On 5 January 1973 we had a referendum to remove from the Constitution the privileged position of the Catholic Church. This was recommended by Cardinal William Conway and the entire Catholic Hierarchy. It was also recommended by the then Taoiseach, Jack Lynch, and by the leaders of every political party. I would like to ask a very sobering question, have we really removed from our Constitution the privileged position of the Catholic Church? Have we really got it out of our system? If Irish unity is our ultimate desire, if we want to create a society in which all Irish people — Catholic, Protestant and dissenters — have equal citizenship, we must abide by civil laws.

On many occasions I have listened to debates on radio and television and read statements in the press by well-intentioned people, including the clergy, who are continually confused as between the moral law and the civil law on abortion. Morally abortion is wrong, and I do not believe that my thinking in that regard will change. However, the civil law must also be taken into account. Regardless of the laws of the country in which I live, be it England, Scotland, Wales, Ireland, the USA or any part of Europe, my moral thinking will not change. The clergy and people in high positions in the pro-life movement have unfortunately confused moral thinking on abortion with civil law, which is the responsibility of legislators. We have an obligation to prevent abortion on demand.

I am convinced by the arguments in favour of legislation. As Deputy Lenihan will appreciate, if Members from different parties disagree on any matter, the longer we talk about it the better chance there is of finding a solution. That does not happen when people are asked to make a decision by way of referendum. No matter what the issue, a referendum is divisive. Politicians are inclined to listen to the strongest lobby and to find the answers to placate that lobby. They decide what is the safest way to travel.

As well as being divisive, referenda can be very emotional, and in divisive and emotional situations the right answers can never be found. Usually you end up destroying the very thing you set out to protect. Deputy Lenihan knows that what I am saying is true, that the proper way to handle this matter is by way of legislation. The proper way to proceed is to say to everyone who wants to prevent abortion let us all row in the one direction; let us stop the argument as to whether a referendum is the right way of dealing with the issue or whether it should be dealt with by way of legislation. That should not be the point of the argument. The real issue is how we introduce or strengthen laws that will prevent abortion on demand. The Government is not facing that challenge. Unfortunately the courageous speeches to which I have referred are not being matched by courageous speeches from Fianna Fáil Deputies.

Fianna Fáil had all the answers in 1983. We could say to them now, you made life hell for us in 1983; you did everything but throw the kitchen sink at us and you did so to placate a popular vote, purely for political expediency. We could accuse the Government of all those things and make life hell for them, but we are trying to be responsible. The Government should listen to the voice of reason and postpone this referendum. It will be divisive and will not solve the problem. At the end of the day common sense should prevail and we could then face the challenge by bringing in proper and strong legislation.

Between 1861 and 1992 — for 131 years — it was believed that abortion was illegal here. However, we had the 1983 referendum and abortion became legal in 1992. We talk about the privileged position of the Catholic Church, the ethos of the Catholic Church and the people in the pro-life movement — I do not say this in a critical way — who are all prominent, good living, Catholic people, but it is strange that laws introduced by a parliament that was not Catholic or Irish, which kept abortion off the streets of Dublin and out of Irish society for 131 years, were changed by a Catholic Parliament and a Catholic people. The referendum was held to prevent abortion but we destroyed what we set out to protect. That was a strange conclusion, but I suppose fact is stranger than fiction.

In a final plea to the Government I would ask them to listen to the voice of reason from the Opposition benches and proceed by way of legislation rather than referendum. We will then explain the decision to those people who desire a referendum rather than legislation.

Mr. Lenihan

I wish to share my time with Deputy Kelly.

An Ceann Comhairle

Is that agreed? Agreed.

Mr. Lenihan

The amendment dealing with the right to travel reiterates a basic human right and the wording puts this matter beyond any about which may have arisen because of the Supreme Court decision in the X case. The amendment relating to freedom of information on services lawfully available in another State is another freedom which can be regulated by domestic law. For these reasons this House — and the people — should not have any difficulty in approving Amendments Nos. 13 and 14.

The real debate arises on Amendment No. 12 which proposes to amend Article 40.3.3º of the Constitution which guarantees an equality of life to the unborn child and the mother. Amendment No. 12 is designed to make lawful the termination of pregnancy "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 Minister for Justice said yesterday: "the only acceptable test is whether the action is necessary to save the life of the mother". This is a clear, straightforward proposition, which should be written into the Constitution in plain, unambiguous terms. I support the Government on the principle of putting it into the Constitution rather than engaging in the tortuous exercise of complex legislation.

I also agree with the exclusion of the risk of self-destruction because of the obvious abuse of this threat being widely used as an excuse for abortion. In the X case, with which we are all familiar, the Supreme Court could, on the evidence, have found in favour of the appellant on the basis of the right to travel without getting into the straitjacket of stretching the evidence to give judgment on the basis of threatened suicide. I cannot understand why the Supreme Court did not make their decision solely on the basis of the right to travel; to date I have not heard a satisfactory explanation as to why they did not find on that simple basis, which would have avoided the arguments since then.

Commonsense should be the currency of law makers like ourselves seeking to ask the people to incorporate a practical principle into their Constitution. We are really talking about the risk to the life of the mother and the only people who can decide that matter are the medical practitioners in the particular case, on its merits, and in the circumstances of each situation as it presents itself to the medical practitioner involved. That is the way it has always worked, the way it works now and the way, I hope, it will always work.

It is also a fact of life that variations in regard to illness and disorder arising from a pregnancy are infinite and personal to each case. The risks are relative and differ in nature and scale from person to person and from day to day. There are not any absolutes and it is wrong to import absolute judgments into this area. The only real absolute — if you want to use one — is the application of high integrity and compassion by the medical profession in dealing with each individual case, on which we are reliant. We have always relied on the medical practitioner's adherence to a principled and compassionate approach and that is the way it should be in future. We are politicians, not theologians or medical experts. In this amendment, having established the humane principle of termination of pregnancy on risk to the life of the mother, we should then leave the matter to be decided by the doctors within the framework of medical ethics. For this reason — I hope I have explained my position — I have grave doubts about the inclusion in the Amendment of the five words: "as distinct from the health" because it sets up a contra distinction between health and life which is confusing to lawyers and doctors and unworthy as far as women are concerned. The words do not serve any useful purpose and are superfluous in the Amendment which is concerned only with risk to life. It adds an unnecessary and confusing dimension to an otherwise almost perfect wording.

The contra distinction between health and life is already causing bewilderment to doctors who will have to interpret it, sometimes in emergencies and in an environment which is becoming increasingly litigious as far as the medical profession are concerned. One has only to think about it for a few minutes to appreciate the incongruities, contradictions and paradoxes. What is the difference between life and health? Life is health and health is life. Where is the line between one and the other? Where does the risk to health end and the risk to life begin? 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. In situations of that kind one must rely on the integrity, compassion and professionalism of the the medical practitioners involved in the case.

I agree with the medical opinion which has been expressed by eminent medical people in recent days that the inclusion of the phrase "as distinct from the health" could have the effect of restricting a certain flexibility which exists under current medical practice where doctors are permitted to exercise it in the best interests of their patients. Potentially, this phrase "as distinct from the health" could result in a regression from the present medical practice in regard to the treatment of women in pregnancy. I am sure that nobody in this House wants that to happen.

In the general debate loose phrases like "direct" or "indirect abortion" have been used and there have been questions in relation to whether termination is intentional or unintentional, advertent or inadvertent. However, none of these phrases is consistent as they mean various things to different people. None of those phrases mean anything in law or in fact. They are meaningless also in a constitutional sense, yet they are being tossed around by various people in this debate like snuff at a wake.

The only reality in the whole issue is the risk to the life of the mother. Where that is endangered the amendment proposes in a general sense that the pregnancy can be terminated. The phraseology should be kept simple and addressed just to that reality. We propose to permit termination in circumstances in which there is a risk to life. The medical profession on medical criteria should be the sole judges, in consultation with the mother, as to whether a termination should take place on that basis. That does not make the issue complicated for us as legislators. It enables us to put a straightforward, unambiguous amendment to the people in a referendum.

Under the amendment we seek to deal in a humane way with the risk to the life of the mother and allow for a termination in those circumstances if it is so decided by the doctor. That is simplicity itself. It will be completely understood by the people and, in my view, it will secure an overwhelming majority.

I therefore suggest to the Minister that at the conclusion of the passage of the Bill he consider the deletion from the amendment before the House of the five words I have mentioned, "as distinct from the health". I am supporting the Amendment in principle. I agree with the principle involved in the holding of a referendum but I would much prefer a clear and more concise formulation that is only concerned with the risk to life and the assessment of that risk by the medical profession.

Mr. Kelly

I compliment the Taoiseach, the Minister for Justice and the entire Government on enabling the people to make known their views and give their verdict on this very important question.

Mr. McCartan

The entire Government? Does that include the Progressive Democrats?

Mr. Kelly

For many yet unborn the outcome of our deliberations, and the decision of the Irish people later, could, and most likely will, mean the difference between life and death. The Irish people are amongst the most fortunate on earth to have for their leaders a party of the calibre of Fianna Fáil, who are prepared to permit the Irish people to clearly express their views on this most important question.

The Minister for Justice was faced with a mammoth task in trying to balance the conflicting opinions of the contending parties on the most serious question of abortion. Those views vary from the outright demand for abortion of Democratic Left to the extreme pro-life contenders on the other side of the spectrum.

Following the decision in the "X" case the Government had no option but to put the issues, namely, the right to travel, the right to information on abortion and the substantive issue of abortion, before the Irish people for decision. The holding of referenda is the correct course of action because under our Constitution the people are the final arbiters on all questions of national importance. The issues involved are of the utmost national importance for our people and for future generations.

The question of the right to travel is not in contention. We all accept that no self-respecting democracy could deny that right. The right to information is a little more contentious and will be carefully monitored by all. Some of the contention concerns the substantive issue of abortion and whether it should be available as a remedy for any malady that might occur in a pregnant woman.

Since the decision of the Supreme Court in the X case made termination of the foetal human life available without limit within the jurisdiction the law of the land has been at variance with the wishes of a great majority of the people as expressed in the 1983 referendum. It is necessary, therefore, to correct that variance and restore the status quo ante the X case decision.

The achievement of that result involves a problem of profound magnitude and complexity. On the one hand the life of the unborn must be protected by law and, on the other, the life of the mother must be equally protected. Those two positions must be reconciled. Several points come into play in that regard, of which, it is clear, the Government have taken due note. The four leading professors of gynaecology here signed a statement which declares that there is no know situation in which only abortion can be used as a remedy to treat a pregnant woman. Other means are available which in the long run achieve a better result for women because although a woman's ailment may be healed after an abortion it is better to avoid the psychological trauma and scars associated with abortion.

All are agreed that circumstances arise when a pregnancy, if it continued, would definitely put the life of a woman at risk. Ectopic pregnancy and cancer of the cervix are two examples of conditions which may give rise to such circumstances. Those two conditions, and a handful of other conditions similar to them, require treatment for a woman — that is, treatment necessary to save her life — that will invariably result in the loss of the life of the foetus. Better that one should be saved than both should perish. So far as I am aware, there is no objection on any grounds to the provison of that treatment. The distinction clearly drawn between life and health in the wording of the Amendment is based on the soundest and most up to date medical knowledge available.

On that basis, I call on all who have the welfare of future generations of Irish people at heart to support the proposed wording and allow the right to life of the unborn to flourish in this land. This would correct a position at variance with the Ireland with which Fianna Fáil, and the majority of Irish people, feel comfortable. I again appeal to all men and women of good will to support the referenda.

Mr. Kemmy

I am a person of good will but I would not agree with the previous speaker because at this stage of the debate most people outside the House are sick and tired of the torrents of words. They will certainly be very confused after we have all spoken.

I am a little upset that a small, powerful and influential group of people have been able to hijack and debase the words "pro-life". Those people are a very small, unrepresentative sector of our community but politicians have run scared from them in the past — more is the pity. I have no intention of running scared today, no more than I did not ten years ago.

In 1983 Fianna Fáil and Fine Gael were railroaded into holding a referendum. That was rather foolish. The late Frank Cluskey, then leader of the Labour Party, told them he would not agree to that but he was the only one of the three party leaders who did not cave in to the blackmail. It was a great pity to have that divisive referendum in 1983, which did nothing for our country. That referendum was a big mistake in that it follows a most narrow, divisive and abstract debate which did nothing to cast any reason or light on this complex issue.

The same thing is happening now. A small group of people have an obsession with unborn life but, as far as I can tell, show no concern for those who have been born and the quality of life of the living. People who are genuinely pro-life are concerned about issues such as unemployment, poverty, emigration and Third World countries. They are concerned with the fact that as we speak women are dying in childbirth in Third World countries. Far too many women die in childbirth there and nobody in this part of the world seems to worry unduly about that. Quality of life is as important as life itself. Famine and starvation throughout the world are on all sides of us and people do not seem to worry about that. That type of life does not seem to bother people; neither does the fact that we have young people sleeping rough in Dublin, London and New York.

We have heard much in this debate about protecting the family and much sanctimonious hypocrisy and claptrap were used about this also. My mother came from County Clare. She was one of 15 children, 14 of whom emigrated to America. I do not see much evidence of protection for the family or family life and for those who had to emigrate. I know something about emigration and unemployment as I have experienced both.

How does one qualify to be regarded as pro-life in our society? Is it by talking constantly and using the words "pro-life"? Does that qualify one to be called a "pro-lifer"? Is it by working in areas with people who are unemployed, who are under-privileged and who are badly off? I would regard people who have a track record, working for people and trying to improve the quality of their lives as pro-life. They are not just proclaiming they are pro-life: actions speak louder than words in this and other areas. People show concern for people by their work, activities and by their track record rather than just speaking about pro-life in an abstract, artificial way. We must try to help the weaker sections of our society to lead a decent life and to have a decent quality of life.

Too many of the so called pro-life people have a negative rather than a positive attitude to this whole question. They pray for peace with words and formulae rather than life itself. We have heard words and various terms being used in this debate but nothing has been done to solve the problem of abortion in our society or in other societies. Words in themselves will solve nothing whatsoever. In this debate words are being used to evade and skirt around the real issues rather than tackle those issues. People inside and outside this House are deluding themselves into believing that the issue of abortion can be solved if they put a hypocritical and deficient form of words before this House and if these words are carried by a majority of the Members of this House. This belief is an evasion of truth and an evasion of reality. Passing this formula of words in this House will do nothing whatsoever to stop Irish women from having abortions if they wish to have them and could, in fact, do considerable damage and harm if interpreted in a very narrow way, as is likely to happen.

The exercise we are engaging in now will solve nothing and is an evasion of the hard cases, as they have been so called. No amount of hammering or pious platitudes, inside or outside this House, can tackle this situation. The hard cases I have described will not go away and we cannot run away from them. If we are honest with ourselves as public representatives we must confront those hard cases and other cases as well. Our party and the Labour Party have a united approach to this issue. We have tried to confront the issue in an open, honest way and put forward a form of words that will improve, rather than hinder, the present situation.

As has been pointed out by many speakers the Consititution is an imprecise, imperfect way of dealing with this issue. The Constitution is a framework, a guide to life and it guarantees rights for our people. It was never designed to deal with this complex matter before the House. It cannot be dealt with as though it were black or white, as has been presented here today. We politicians have been presented as if we were somewhat like national gate people controlling sluice gates keeping certain things out of our society. That is a wrong way of looking at our job.

Our job is to legislate for people here and now and to improve the quality of life in our country; we are not a kind of moral gate people as some people think. In any case, life is not like that. We live in a different world now, a world of communications, where people have rights to travel and rights to information. We cannot turn the clock back 20, 30 or 50 years. Ireland is not the world. We are a very small country with a very small population. The Bills before the House will not change anything in the big world outside and neither will they change much in this country. Fianna Fáil are trying to have it both ways. They are as cute as they have always been and they are too cute by half on this occasion by kicking to touch on a most complex and difficult issue.

The referendum is a mistake and should not be held. The wording of the Twelfth Amendment is flawed. It can only be a matter of time before this issue and the wording of the Amendment will be challenged in the courts and will come before this House once again. I believe we have wasted an opportunity to do some good for our people. As it stands, the words in the Twelfth Amendment are illegal and a medical minefield. You will find that my words will come to pass. Next time around — there certainly will be a next time — let us hope we will do better.

I regard this debate as a lost opportunity, a lost chance for us to have done better by far. I have listened carefully to many people who have contributed to the debate, including the Progressive Democrats, who should not be let off the hook. They have the opportunity to challenge this in a positive way by voting against it. They have wasted that opportunity and have dodged and funked it. So far as I am concerned, this whole debate has been a waste of time and money. It is nothing more than a monument of bogus punditary and more is the pity.

I wish to share my time with Deputy O'Shea.

Mr. O'Shea

The whole issue in relation to the life and health of pregnant women falls into a number of different areas. It has a moral dimension, a civil rights dimension and a health dimension. The first question that arises is whether a woman has a civil right to life and health and, indeed, in the context of public morality she has a moral right to her life and health. Law must concern itself with the balance between the rights of the individual and the common good. In the context of the life and health of the woman, what constitutes the common good? Central to this issue is how the life and health of women relate to the common good. There appears to be virtual unanimity in this House on the matter of the civil rights of the woman to her life where there is a real and substantial risk to her life during pregnancy.

The medical procedures necessary to save her life would be lawful if the Twelfth Amendment to the Constitution is made by the people. However, the Labour Party have difficulties in regard to the inclusion of the word "save". The Labour Party would submit that the word "protect" should be substituted for the word "save". The protection of the life of a woman, as distinct from saving her life, must surely be the superior concept in relation to the civil and moral right to life of the pregnant woman. The word "save" has the connotation of dealing with an imminent crisis while the word "protect" would allow for the appropriate treatment at an earlier stage which would, is some instances at least, prevent possible long-term damage to the health of the woman. This raises the distinction between what exactly is meant by health as distinct from the life of the mother. Where is the cut-off point between what the Amendment contemplates as the life of the mother and the health of the mother? What are the specific guidelines in relation to this? Is such a distinction either possible or desirable?

It is generally agreed that there are no certainties in medical matters. Whether the life or the health of the mother is at risk in particular circumstances is very much a matter of opinion. Therefore, should the pregnant woman in a civilised society be exposed to this type of danger? The Labour Party are a pro-life party in all the many manifestations of that concept. Unfortunately, for all legislators the issue which we are discussing brings us to making judgments and decisions where the options are all, to some extent, distasteful. This should not deter us from taking the right decisions without fear or favour bearing in mind the human and civil rights factors involved. When the options are all undesirable then the integrity and value of Dáil Éireann is tested. If we do not act effectively to protect the life and health of pregnant women, we will have betrayed the mandate given us by the people who elected us and, in particular, by women.

With regard to the protection of the life and health of pregnant women, the medical treatment to be carried out must at the end of the day, following medical advice, be the choice of the woman. She should be supported by comprehensive counselling and medical advice on the one hand and her partner on the other. The key word is "compassion", and this compassion must be free from doctrinaire positions of whatever hue.

When there is a real and substantial risk to the life or health of the mother, then the necessary protective treatment should not be withheld. This is an area which requires legislation as distinct from constitutional amendments. The Constitution is a document which essentially states principles. An issue as complex and individual as abortion requires different and more comprehensive treatment. No two cases are the same, and we need legislation which is comprehensive enough to embrace all contingencies where there is a real and substantial risk to the life or health of the mother. There are those who say that politicians cannot be trusted on this issue. I find such remarks offensive. The people gave us a mandate and entrusted us with putting in place legislation which essentially protects individual rights and promotes the common good.

Whereas the Labour Party have problems with the amendments in relation to travel and information and will be putting down amendments on Committee Stage, there is widespread agreement on these issues in the House. The issue of information is very basic. With regard to women who travel abroad to have an abortion, there is an enormous obligation on all of us. I am referring to the Members of his House, the Members of the Seanad, public representatives of whatever hue and all the organisations who campaign on this issue from whatever point of view. We must create a caring environment which provides all the supports necessary, including easy access to the very best counselling and medical advice. This would lead to a reduction in the number of women travelling abroad to have abortions. How many of the women who travel abroad to have abortions do so feeling abandoned and alone and are acting out of panic?

We must adopt a caring attitude and look at the problems surrounding this issue. As I said earlier, the options in this area are distasteful; there is no option which will get us out of difficulty. We must have the courage and compassion to ensure that the civil rights of women are protected.

Can it be that a Constitution which requires the State to look to the economic needs of mothers is unconcerned for the health and welfare and happiness of mothers? I am certain that reading the Constitution as a whole, as I believe one must do, then the answer is clearly not. A broad dimension must be given to the Constitution and a narrow or pedantic approach to its provisions has to be put aside.

This judge, who is often regarded as conservative in his view and interpretation of the Constitution recognises the essential ingredient of happiness, of people's right not just to life but also the right to be able to actively enjoy that life. Attempting to define a difference between the life as opposed to the health of a woman is divisive and unnecessary.

In cases where medical opinion is that a woman's life or health is at a substantial risk from a continued pregnancy, then abortion — and I say this unequivocally — should be an option available to her. In this context of health, I have no hesitancy in including the concept of a threat to health as presented by suicide. I utterly and totally fail to accept the Government's line of thinking that in dealing with the health of a woman one can exclude the threat of suicide as a health concept. It defies all reasoning to say we are legislating to protect the health of a woman while saying that suicide cannot be considered in that context.

I am not advocating abortion on demand as other Deputies and myself on this side have been accused of when we have sought the reasoning behind the Government proposals. To suggest that what we are talking about is abortion on demand is both offensive to women and to the medical profession generally. It suggests that women here cannot be trusted to respect their motherhood or, indeed, that beautiful capacity of bearing children to full term.

The Government are insulting women and the medical profession by suggesting the right to consider a threat to women's health amounts to seeking abortion on demand. That insult, for what it is worth, is also an insult to women and the medical profession in England. We must not forget that more than 4,000 women — I believe the figure is much closer to 5,000 — travel to Britain each year to terminate unwanted pregnancies. The regime in that country is subject to the same Hippocratic oath and constraints in legislation which apply elsewhere to regulate circumstances in which abortion is available. To suggest that that amounts to abortion on demand is devoid of any reasoning and is insulting to the medical profession and to the women of that country, as it would be to those at home who seek to deal with a very difficult problem here.

The facilities which we, as legislators, and the people are asked to endorse by the proposals in the Thirteenth and Fourteenth Amendments of the Constitution do not go far enough. When we speak of the right to life and to enjoyment of that life, are we not also obliged to have consideration for the lives and rights of existing children in families? Have they not got a right to the enjoyment of a healthy mother? What good is a mother to her children if she is in a coma? Equally, what good is it if as in the case of Mrs. Hodgers, who survivied the pregnancy for two days but inevitably died.

In regard to the Supreme Court decision in the X case, the tragic circumstances which led to that decision must not be forgotten. Those facts have been well rehearsed in this House over the past two days. It must be put clearly on the record that every Member in the House was relieved when the Supreme Court reversed the decision of the High Court which sought to restrain and imprison a 14-year old girl in this country until her child was delivered. That 14-year old girl who was raped and impregnated was ordered by the High Court to stay for the full nine months within the confinement of her home, if not of the State, until she delivered her child. I am waiting to hear one Member of this House say publicly that is what he or she would have wished. We were all relieved when the Supreme Court reversed the decision. That court delivered a judgment which was well reasoned and basically fair in its conclusions. It said that the girl whose life was threatened was entitled to have that pregnancy terminated; she was entitled to an abortion and the court did not interfere with her right to travel to England. One may ask why she did not have the abortion here. One wonders if she did.

I was particularly annoyed, therefore, in the days leading up to this debate and during it, to hear Members in some way criticising the Supreme Court for their ruling and suggesting that they took us by surprise by delivering an incomprehensible decision. Anyone who argues that the ruling was unacceptable is being grossly dishonest because we were all relieved at the fair decision. The judgment stated that in circumstances where the life of a woman is threatened by a pregnancy there should be available to the woman the right to opt to end that pregnancy.

The Supreme Court also said that as long as we have a Constitution which recognises the right to life of a woman there can never be an absolute ban on abortion in our law. To the extent that the Minister for Justice has accepted that proposition, challenged the so-called pro-life camp on this gross misstatement and centred on the propaganda which they would like to see permeating this debate, he must be congratulated. The Minister has recognised that there cannot be an absolute ban on abortion in our administration or in our law. He recognises the fact that where a Constitution is charged with protecting the life of a woman in certain circumstances an occasion may arise when that act of protection must necessarily involve the termination of the foetus. Therefore, I am disappointed that having accepted the basic principle laid down in the Supreme Court judgment the Minister abandoned the final conclusion of the court's ruling in that case, namely, when one came to deal with the health issue, suicide was a factor to be considered.

The question of the right to travel is being glossed over. Most Deputies consider the wording to be perfectly acceptable in the way it is couched and in what it purports to do. Its overall role is ludicrous because it is the vehicle whereby we as legislators are saying to pregnant women who wish to terminate their pregnancy that they cannot do it at home but may go elsewhere to do so provided they have the money. That provision is not everything it sets out to be when it is taken in context with the Twelfth Amendment of the Constitution — on the substantive issue — that a woman may become pregnant against her will and her health is not threatened by that pregnancy. If she confides in her husband or her boyfriend that she intends to travel to England to terminate the pregnancy and the father seeks an injunction through the courts, the issue will be determined by the courts on balancing the right to life of the foetus and the right to parentage by the father against the woman's right to travel. In regard to the manner in which our courts set rights in hierarchy and balance one against the other, I believe that the right and the duty of the court to protect the right to life of the foetus will prevail. Indeed, I believe there is a strong argument to suggest that the right of a parent, of the husband or father, will also prevail over the right of the woman to travel. I am not satisfied that the writing into the Constitution of this provision, in the context of what is provided under the substantive issue, deals with the issue as absolutely as we believe or are led to believe it will.

There are many other matters that clearly need to be adressed, dealt with and teased out. I have absolutely no hesitation in saying, in this Chamber and elsewhere, that where a woman is raped or subjected to incest — which is rape in itself — and is impregnated, she must have the absolute right to terminate that pregnancy within a reasonable period of time. It is an obscenity in the extreme to suggest to a woman, who is set upon against her will, impregnated by whatever blackguard and forced to carry an unwanted foetus, that she cannot have the option in her own right, and subject to consultation with her medical advisers, to terminate that offensive pregnancy. I cannot understand how we, as legislators, cannot in all humanity provide for even that restricted situation.

The answer, we are told, is that this right will open the door to abortion on demand. I do not accept that concept; I am not an advocate of it, but I feel we have certainly no ground for arguing against it in the circumstances where we do not provide reasonable access to contraceptive devices and advice on contraception, where we do not provide any adequate or proper sex education in our curricula in schools, where we provide no public education programme through thd Departmennts of Health or Education in regard to fertility and family reproductive control, and particularly where we provide absolutely no State funded counselling or support services for women carrying an unwanted foetus. In those circumstances we have a total gall to say to women that they have no right to consider the option of abortion.

In conclusion, it is a total contradiction that we are providing this legislation for those women who have the means and the ability to travel abroad to terminate their unwanted pregnancies. It is an incredible contradiction heaped upon contradiction. Those contradictions have destroyed a very real potential for consensus to act on this matter that was present in this House in February of this year. The opportunity was not seized upon by the Government and has now, in fact, been destroyed by what the Government have produced over the last few days.

Deputy Gilmore

I would like to thank Deputies McCartan, Kemmy and O'Shea for sharing their time with me.

Underlying this whole debate is a deep distrust of women, which I find repugnant, and which I think needs to be faced. There are two issues. Should a woman be permitted to obtain in Ireland an abortion if her health is at risk? Should she be permitted to obtain an abortion if her life is at risk from suicide?

The Government says "no" to both of these questions because they claim that to allow women the freedom of choice in these circumstances, is to open the door to what they call "abortion on demand".

What is meant by "abortion on demand"? It is a term which will be used like a bludgeon between now and 3 December to down the arguments of those who oppose the Government's wording. It has already been used by Government Ministers and even by the Taoiseach to castigate the proposals which were put forward by Democratic Left on this subject. So what does the term mean?

It is being suggested that Irish women will walk into hospitals like they would ramble into a hairdressers and order an abortion? Do the Government really think that Irish women care so little about maternity and childbirth that their freedom must be restricted not only by legislation, but by force of the Constitution and even by the Treaty on European Union?

Do the Government think that women will be claiming to have been raped, that they are suicidal? Do they not realise that women think very seriously about the option of abortion, including women who ultimately decide to proceed with it? Do they not know that women think very seriously about abortion before they decide on that option? What kind of attitude to women lies behind the thinking that such special laws must be made to govern one of the most personal and complex aspects of their human condition?

It is argued that what is at issue here is fundamental — that this is an issue of life or death.

I think Fintan O'Toole put this argument very well in his article in The Irish Times on Wednesday, 14 October 1992:

There is another characteristic sound of the pronouncements on abortion in the last few days. It is the sound of air bubbles breaking the surface, of waves gently lapping over balding heads, of flailing arms thrashing the waters. It is the sound of men who have wandered in past their depth, wearing the hob-nailed boots of political expediency that make them now too clumsy and heavy to turn around and come back again. Men who can't deal with the things that are supposed to be their business, such as jobs and houses and hospitals, suddenly decided that they were up to dealing with nothing less than Life and Death. They discovered their hidden depths and plunged straight into them.

Why is it that the issue of life and death evokes such passion only when it relates to women and pregnancy? Why is there no constitutional provision to protect the lives of travellers' children, whose lives are, if I may use the phrase, indirectly terminated by their appalling housing and living conditions? Why is that the issue of direct or indirect killing is never raised in this context or in the context of war? Did the refuelling of American planes at Shannon during the Gulf War lead to the indirect killing of babies in Baghdad?

What I am questioning here is why it is that "the right of life" has become an issue only in relation to women? What the Government are really saying in these measures is that they do not trust women. They do not trust women to make the judgment whether their health or lives are at risk.

Human reproduction, fertilisation, pregnancy and childbirth are extremely complex interpersonal issues which do not readily lend themselves to constitutional definitions or regulations. They are sensitive matters which evoke all the range of human emotions, personal differences and diversity which exist between people. It is difficult to envisage a less suitable subject for legalism or constitutional disputation. Indeed it is extraordinary that someone or some group in our society have sought to deal with such a complex human question by way of constitutional provision or by a clumsy legalistic intrusion into the deeply personal world of human relationships.

Since the inclusion in 1983 of Article 40.3.3 in our Constitution we have had considerable fear, shame and misery for pregnant Irish women and collective hypocrisy within Irish society as a whole.

The courts have sought to abide by that constitutional provision with extraordinary consequences for many women, children and families. It has made criminals of thousands of Irish women, has aggravated the dilemmas facing couples with unwanted pregnancies, disrupted the intimate doctor-patient relationship and generated a series of unnecessary legal disputes. It has distorted natural human responses to pregnancy and overlaid them with taboos, recriminations and fear. It has made sexual refugees of Irish women, made spies of patients in family planning clinics and revised the medical preoccupations of middle-aged power-brokers with sex and sexuality exerting control over women's bodies and rights. It has proven to be the most persistent source of intolerance and right wing reaction in the Irish Republic in recent years.

Now we have a proposal from the Government to add new subsections to Article 40.3.3º in an effort to deal with perceived "unacceptable circumstances" arising from the Supreme Court judgment in the X case. We are to have subsections on travel and information and the substantive issue of abortion. Each of these measures was a reaction to the one which went before and arose from a refusal to go to the root of the problem and pull back from a misuse of constitutional law. The new subsections seek not only to roll back the Supreme Court decision but to roll back the meaning of Article 40.3.3º itself on women's equal right to life. It will open the door to even more litigation and fail to deal openly and honestly with the real and continuous problems of Irish women.

The Constitution should not be used to superimpose a dogmatic principle on the health of women. What is being done here is an insult to the integrity of women. Some of the words which are used in these Bills are unique in this situation. The term "it shall be unlawful" appears nowhere else in the Constitution except in the proposed wording of this Amendment. The distinction between the life and health of the mother is unique not only in our Constitution but, I would suggest, in legislative provisions elsewhere.

I take up the point raised by Deputy De Rossa this morning in connection with the way the ballot paper is to be titled. It is proposed that the ballot papers will be in different colours and that each will have a separate title. The ballot paper dealing with what is known as the substantive issue will be entitled "Right to Life". It is an extraordinary decision to use that title since that term does not appear in the text of the proposed change to the Constitution. The introduction of a title to the ballot paper, which will require an amendment to the 1963 Electoral Act, is an underhand attempt by the Government to introduce a bias in the ballot paper itself. It is a form of political cuteness that should have no place in this entire issue. There is general acceptance that the issue of abortion is politically sensitive because many people in our society hold different but genuine and deeply held views about it. Those views should be respected. What I think we are getting here is an attempt to sacrifice the health of women on the high altar of political cuteness. It is, I submit, politically cute to title the ballot paper in a way which introduces a form of bias into the referendum process.

Political cuteness is not entirely confined to the Government benches on this issue. For several weeks I have been hearing people on all sides of the political divide stating that they want this issue dealt with by way of legislation, but I have heard very little about what would be in that legislation. It is time for people who have been calling for legislation on this issue to state what they propose should be in that legislation. It is time for this House, for politicians and people outside this House to stop being politically cute on the question of the health of women.

Mr. Lawlor

I propose to share my time with Deputies McDaid and de Valera.

An Leas-Cheann Comhairle

That is in order.

Mr. Lawlor

It is not surprising that I should congratulate the Government on having fulfilled the commitment to hold a referendum on travel and information and to put forward a solution on the substantive issue. The sceptics who predicted that this would not be possible or who doubted the Government's good faith have once again been confounded. The travel and information referenda have been broadly welcomed. They also arise from the X case. Interference with the freedom to travel is not acceptable in a modern democratic State. There is also wide consensus that anyone who wishes to seek an abortion abroad should at least be given all the alternative options and non-directive counselling. It would be ridiculous, however, if the people were to be consulted about these matters and not about the main issue of abortion. Such a strategy would run the risk of having a negative impact on the chances of success, particularly in regard to the information referendum. The principle underlying the 1983 referendum was that the people would be consulted again if there was any question of legalising abortion.

This matter has arisen unexpectedly as a result of the Supreme Court judgment in the X case and therefore it has to be addressed. It would be a denial of democracy to allow the legalisation of abortion without consulting the people again. We gave a very firm commitment before the vote on the Maastricht Treaty and we are now taking the correct and proper action.

There are those on the Opposition benches who say that dealing with this matter by way of referendum has demonstrably failed. I reject that argument. Abortion as a public policy issue was bound to have arisen in some form in the past ten years. It has been deeply controversial and divisive in America, Britain, Germany and Italy. Perhaps the best example is Belgium, where the King abdicated temporarily for 24 hours rather than sign the legislation passed in the Belgian Parliament. We have to be able to grasp the nettle. This the Government are doing in putting forward pragmatic and realistic proposals.

Fine Gael should not be allowed to forget the key role they played in 1981 in the decision to have this issue dealt with originally by way of referendum. Deputy Garret FitzGerald and the then Senator Gemma Hussey met members of the Pro-Life Amendment Campaign on 30 April 1981 and gave them an instant pledge, without proper reflection as to whether this was the proper way to proceed. It left us in Fianna Fáil with little choice but to give a similar commitment a few weeks later. Unlike Fine Gael who had a cynical attitude to election pledges, considering that they could be forgotten or watered down once they had achieved their purpose, Fianna Fáil, back in Government in 1982, proceeded conscientiously to find a suitable wording in accordance with their pledge.

When the first wording was published in November 1982 Deputy FitzGerald had it legally examined and made a public commitment to put it before the people before 31 March 1983. Once again trying to go one better then us in Fianna Fáil, Deputy FitzGerald wrote to PLAC on 6 November as follows:

The referendum will not be delayed by any other consideration. This is an integral part of our programme and will be undertaken by any Government that I may have the responsibility of leading after the next election.

A couple of months later Deputy FitzGerald, safely back in Government, backed away from this solemn commitment, with some legal cover provided by the then Attorney General, whose objections were dismissed by the late Deputy John Kelly, one of the country's foremost constitutional lawyers. Legal queries are, of course, possible in relation to any law or constitutional provision that is subject to interpretation by the courts. Deputy FitzGerald's gross breach of faith with the electorate could not be stomached by several of his back benchers or by nearly half of the Labour Party who voted to ensure that the original 1982 wording chosen by Fianna Fáil was put to the people.

The Supreme Court decision in the X case has been very controversial. It has not been accepted as being valid by many lawyers and it was not reasonably foreseeable. The question of suicide was not raised by the Attorney General or by anybody else in 1982-83. The 1983 Amendment was based on the excellent principle of the equal right to life of the mother and of the unborn. Few people, other than those who were openly looking for liberal abortion law, had challenged that principle. The Supreme Court judgment in the X case requires us to further clarify this principle. The Government have done that in a way that should be reassuring to mothers and pregnant women, removing any worries as to how the equal right to life principle should be interpreted in practice.

The additional principle which is set out ensures that any pregnant woman who has a life-threatening condition will be given all the necessary treatment and that will be the case whatever the condition and whatever the recommended treatment. Obviously, the doctor has an obligation, where possible, to ensure that a live child is born but there is no sense in allowing both mother and the foetus to die for want of treatment. While medical opinion is divided, there is sufficient weight of evidence to suggest that a termination may occasionally be required to save a woman's life. This cuts across the direct-indirect distinction which is not a medical or legal distinction. It could interfere with existing medical practice and introduce a certain amount of confusion and uncertainty for doctors, patients and the courts. As the chairman of the Institute of Gynaecologists said in a letter to The Irish Times on 16 October, there is no consensus on the matter among the medical profession and this is not a black and white area.

In that connection, I note a rather striking contradiction between the position of SPUC in Britain — who supplied most of the literature for the Irish Pro-Life Movement during the Maastricht campaign, as set out in last Saturday's Irish Press— and SPUC here. SPUC in Britain acknowledge that abortion to save the mother's life was legal before the Act and they do not dispute that it should be. It seems that there is a serious difference of view between SPUC in Britain and the Irish branch as to what is realistically the right position to take. There is a folklore that goes back a long way with regard to women with cancer being told by priests or doctors that they may not be treated and that by implication they will be left to die. Leaving people to die when they could be saved is not a great pro-life position. Indeed, it is the opposite.

Fianna Fáil in their proposal clearly repudiate that kind of inhumanity to the extent that it still persists. The substance of the proposal is very pro-woman and represents a significant advance in terms of clarification of the position. We have not bowed to pressures to use ideological language in this debate or in the proposal we will put to the people. If this referendum is defeated we will not hold another with a different tougher wording. Either the referendum is passed or abortion will remain legal in cases where the woman claims to be suicidal with the backing of a psychiatric report. All the international evidence suggests that this would create a very dangerous loophole.

While supporting the referendum, Fine Gael are asking for legislation. I vigorously disagree with them. There is no case for the legislators to come between the medical profession and the patient, and I detect little demand for legislation from the medical profession. Legislators cannot foresee all possible medical circumstances. It is far better to leave it between the doctor and patient in accordance with clear general principles, than to establish or attempt to establish a maze of regulations. Irish maternity hospitals have adequately dealt with this rather complex legal matter for many years in a realistic and intelligent way.

If the Supreme Court, barring the question of suicide in Deputy FitzGerald's words, removed the ambiguity in the original wording, what possible objection could we have to incorporating the key passage in the Supreme Court judgment word for word into the Constitution?

There has been criticism of the distinction drawn with regard to health. The distinction is drawn directly from the Supreme Court judgment which parties opposite appeared to approve. If the clause is left out we could be faced with a Y case where the meaning of the term "life" is extended to include the quality of life, which is a nebulous concept which would require us in the future to hold yet another referendum on the subject.

I do not know if Fine Gael, Labour or most representative groups are demanding that a health risk should be sufficient for termination of a pregnancy. Are they familiar with the language of the 1967 aborton laws in England which permits termination if the continuation of a pregnancy would involve risk of injury to either the physical or mental health of woman? That is what has led to abortion on demand. The language is very plausible but it leads to results different from what may be intended. Are those who are saying that they do not like the distinction saying that in order to save the health of the mother termination should be allowed? Have they any proposals as to how such a clause could be implemented without risk of further abuse?

People have objected to the exclusion of suicide, although with the exception of Deputy Nuala Fennell, it has been supported by Fine Gael. It is being excluded because it is obviously open to abuse. It is very difficult to determine conclusively another person's intention even if one is a trained psychiatrist. It is therefore inadvisable to legislate for it. Studies have shown that, for instance, in Minnesota between 1950 and 1965 when suicide was an allowable grounds for therapeutic abortion, over 60 per cent of all abortions took place on that grounds, yet figures for actual suicides were negligible. During the seventies in the National Maternity Hospital in Dublin there was not a single case of suicide reported. Anyone genuinely suicidal, with the persons caring for her, will have the option to travel, if that is the only solution they see, even though I am sure excellent counselling will be available.

There have been some criticisms from the Church of Ireland. We in Fianna Fáil ensured in 1983 and today that sectarian language was not put into our Constitution. The substances of the Government's proposal is very close to the criteria of the Church of Ireland, that strict and undeniable medical necessity is the only justification for the termination of pregnancy. While respecting the preference for legislation, it would not be the proper democratic process. The general principle can work and our proposal is better than legislation because it leaves the responsibility with the medical profession who will have no serious difficulty working with the wording, as the president of the IMO confirmed.

As legislators we have a wide responsibility to society. Our personal religious convictions, while important, cannot be our sole guide to sensitive and controversial social issues. The Churches will respect, as they have in the past, their different role in setting out their moral teaching and our role as legislators who must have regard to our proposals workability and defensibility in terms of public policy. As a country we are faced with many pressing economic and other problems. There is no case for prolonging the debate. The vast majority of people want the proposition to be put to them so that they can decide on it, so that we can all move to other business as quickly as possible. It is certainly not the Government who wish to prolong this unavoidable diversion of public attention from other important issues. Fianna Fáil had the courage to take up a clear position on this most difficult of issues. The Democratic Left Party, to be fair to them, have done likewise. I look forward to hearing more of the substantive thinking of Fine Gael and Labour as opposed to their procedure of drafting points.

It is amazing that Fine Gael both on this issue, and on the Green Paper on Education last Friday, suggested that the time for making submissions on these issues was too short. We have had the Supreme Court judgment, the wording, and our commitment during the referendum on the Masstricht Treaty but when the crunch came after the Cabinet sub-committee concluded their work and produced recommendations for the three referenda they are still asking for more time.

Mr. Lawlor

You will be back in 75 years, I suppose. I believe we have got the correct balance. We know the mood of the Irish people, what is acceptable and workable. These questions will be put on 3 December. The right decision has been made and it will stand the test of time. I have no doubt that the maternity hospitals will be capable of reflecting the general wishes of the Irish people that abortion is not acceptable or legal here but that the pregnant woman will take priority. That is an intelligent, objective way of dealing with a very complex matter. I look forward to a Yes victory in the three referenda.

Dr. McDaid

I wish to refer briefly to the Twelfth Amendment Bill. I have been concerned about various aspects of the substantive issue during the past few months and I have written about these concerns on two or three occasions. Like most Members, the last thing I want to see here is the type of widescale abortion which has become so common in other countries. It disturbs me, and I abhor the carrying out of abortions for no better reason than as a method of birth control, especially at a time when thousands of childless couples find it impossible to find a child for adoption.

I have also referred to the awful dilemma we find ourselves in when, in very rare cases, a woman is virtually sentenced to death as a result of her pregnancy. I mentioned a list of possible conditions which could give rise to this situation, even though it is acknowledged that medical science can deal adequately with the great majority of these cases. There is always the exceptional case and I cannot understand how eminent professional colleagues of mine can say that these exceptional cases cannot arise, that no woman will ever be faced with such a dilemma, that they can be 100 per cent sure that this will not arise. Those who make such statements are acting as gods.

My recent article in The Irish Times has been quoted in this House. In it I said that even if there was only one exceptional case in ten years or more we would be very wrong to have a total ban in the Constitution against any procedures which would save that woman's life.

The real purpose of any debate is to listen to a variety of views and to be prepared to act accordingly if necessary. Many of the fears I expressed have been allayed in recent days by the Ministers for Justice and Health. I congratulate them on the attitude they have adopted to this highly emotive and complex issue. I am heartened by the fact that the Minister referred specifically to many of the fears which I, among others, expressed and he has convinced me that they have been taken into account. I am not a legal person but the Minister obviously has had the benefit of the best expertise available. The explanatory document given to the leaders of the Opposition parties was drawn up by professional people, legal and probably, medical people, and I had no problem with the interpretation in that document. Some confusion appears to have arisen with regard to the interpretation of the interpretation.

However, I would be less than honest if I did not say that I am still worried about the insertion of the words "as distinct from health". The Minister acknowledges that these words may give offence to many women but clearly he has been advised that to omit them might leave the way open to a more liberal approach to abortion. If this were proven to be inevitable then I could understand his concern. However, he states that the risk to life need not be immediate. There seems to be a contradiction here. If this is the case, why insert the words "as distinct from health"? I have always been under the impression, as a medical man, that health is the determining factor where life is concerned.

The Minister referred to the experience in Great Britain and elsewhere. The difference is that these countries do not have a written constitution which sets limits on what Parliament can do. If some people are afraid that the omission of a reference to health may lead to spurious decisions being made by some doctors who see nothing wrong with an extreme liberal view, surely these fears are adequately dealt with by the main wording in the amendment. Such doctors would be dealt with appropriately by the medical council, not to mention by the courts.

I have also mentioned that for the guidance of doctors certain legislation may be necessary. The Minister said:

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 or not termination of pregnancy is necessary to save the life of the mother and should not give rise to difficulty in practice.

The Minister also said:

The proposed amendment does not disturb or change the finding in any way and does not require an immediate risk to life.

Many examples have been given in this House and quite a number of anatomical lessons have perhaps been learned. Let me give one example of a 45 year old woman who has had quite a number of children, who is hypertensive or who has angina. If that person did not want to go ahead with the pregnancy and was able to find some "rogue" doctor, for want of a better word, could it not be said that he could accommodate her on the basis that the wording does not require an immediate risk to life? If that woman were to die within two to three years would her parents and relatives not have the right to say to me, if I refused to perform the termination, that she would still be alive if I had agreed to the termination? That could form the basis of a Y case. It is for this reason that I believe that there are not enough words in the Oxford English Dictionary capable of being inserted in the Constitution to satisfy everybody in this instance. I also believe, given that medical guidelines are required, that subsequent legislation, in addition to the amendment, may be required and I am heartened by the fact that the Minister stated in his speech in that same paragraph: "we will of course listen carefully to any views expressed on this matter during the course of this debate."

Last weekend I said that I was concerned about the decision to publish the outlines of the legislation that would be necessary in the event of the amendment not being passed. I made a point of discussing this matter with the Taoiseach and as a result of this conversation and on hearing the Minister's speech I am now satisfied that it would have been irresponsible of the Government, were the occasion to arise, to thrust this legislation on the people without prior warning at this stage of the debate. The Taoiseach is right when he states that society at this time is not prepared to tolerate either of the two extremes in this case and he is to be commended for insisting that the constitutional imperative of a mother's right to life must be borne in mind at all times. It goes without saying no matter what procedure is adopted in medical practice that every effort must be made to save the lives of both mother and child.

This is by far the most complex issue to come before the House in a long time. Not one of us can claim to have all the right answers. Conflicting arguments are being made from all sides but at the end of the day the Government must act with commonsense and realism. The Taoiseach has kept his word by bringing in these referenda within the timescale that he promised. I trust therefore that as a result we may arrive at the most sensible decisions possible.

Miss de Valera

When the referendum on the right to travel and information was first mooted it was my hope that we would also have a referendum on the substantive issue. I am therefore supportive of the Government's action. I have had the opportunity to have a number of discussions with the Minister for Justice and the Attorney General on the matter and I am reassured by their caring and practical approach. It has been the responsibility of the Government to draw up the parameters of the provisions to amend the Constitution. This has not been an easy task and it has taken many months of consultations and deliberation.

While there has been some sincere contributions in the House during the debate there has also been a cynical attempt by some who have deliberately tried to create a climate of fear among women by saying that the wording of the proposed amendment on the substantive issue would put the lives of women at risk. The truth is the complete reverse; the amendment sets out deliberately to save the life of the mother where her life is in danger. The proposed referendum seeks to restore the concept of the equal rights of the mother and the child.

I have been nauseated by a number of speakers on the Opposition benches. All through this debate they have been looking for more time to discuss this issue but neither they nor their respective parties have made any positive contributions or supplied a wording to the Government in the hope that there would be consensus on this issue. This can be put down to one of two reasons:— either the Opposition were incapable of putting forward such a wording or else they did not have sufficient interest or commitment.

It is easy to speak here in such debates but it is much more difficult and takes more time and effort to put forward concrete proposals for consideration. These have not been forthcoming from the Opposition parties to date. Therefore I can describe much of what has been said by members of the Opposition parties as bluster. While this may be an unfortunate hazard of political life from time to time, it should not be so evident on such a fundamental question as the one under discussion here today.

There is much resistance in this House to the proposal that a referendum should be held. Let me ask the following questions. Why do so many Deputies on the opposite side of the House fear a referendum and why should they be so apprehensive about the decision of the people? Do they believe that the people are incapable of making the right decision or are they implying in some way that the people outside this House are less capable of making a decision than the legislators within it? The people in my constituency who have spoken to me directly about this matter want to be given the opportunity to express their view on such a personal and fundamental matter. The Opposition parties should not attempt to thwart this basic right.

Mrs. Taylor-Quinn

It is now nine years since an amendment was introduced in the House to insert a clause in the Constitution. In 1983, we on this side of the House opposed that amendment but, unfortunately, Fianna Fáil, in a cynical political exercise, supported it and pushed it through the House to gain a short term political advantage. This amendment was subsequently carried in the referendum by the people.

Since then there has been litigation which culminated in the X case. During the debate in this House sight has been lost of the terms of that case and the relief that was provided following the final decision in that sad and tragic case. Today we are discussing proposed amendments to the Constitution dealing with the right to travel and information and the issue of abortion itself.

The Government have said that they have sought to achieve consensus but I believe that the Taoiseach, Deputy Reynolds, and his party have acted in a cynical manner and have disregarded the women of Ireland primarily for party political considerations. They have shown no consideration for the women of Ireland and this is evident from the manner in which they have sought this famous consensus — all they want to do is to ram these Bills through the House to gain political advantage.

The Supreme Court decision earlier this year provided the country with an opportunity to address the issue once again but, unfortunately, we are going through the same experience. The Taoiseach has put his own party's interests first while the purpose of the Twelfth Amendment to the Constitution is to cause the maximum amount of political embarrassment for all other parties. An attempt is being made to classify as proor anti-abortion certain Deputies and parties in this House who are attempting to adopt a responsible and thoughtful position on this extremely sensitive issue.

A similar exercise was carried out in 1983. I was a member of the Fine Gael Party in Government at that time and I remember the divisiveness and the appalling attitudes which were adopted at the instigation of Fianna Fáil. Here again an attempt is being made by that party to proceed down the same road. The intention of the Taoiseach and the Minister for Justice is particularly apparent and crude because obviously their first target in this campaign was their partners in Government, the Progressive Democrats. They decided they would push the Progressive Democrats into a corner and because of the manner in which Fianna Fáil were handling the matter they would be forced to leave Government. That crude and despicable tactic was adopted by the Taoiseach for a specific reason, to avoid presenting himself to give evidence at the Beef Tribunal. He avoided attending that tribunal on two previous occasions and he hoped to call a general election before he was next due to appear before the tribunal, which is next week.

An Ceann Comhairle

The Deputy is deviating from the constitutional issues before the House.

Mr. T. Kitt

She is good at that.

Mr. Dukes

She is questioning whether the motivation behind the Bill is legitimate.

Mrs. Taylor-Quinn

The Progressive Democrats were forced to make a decision in regard to the position they would take and, as outlined by their Leader here today, they made their decision. In one sense I sympathise with the dilemma of the Leader of the Progressive Democrats but I am gravely disappointed that he put the lives of the women of Ireland in a secondary place to an impending general election. That is unfortunate for the women of Ireland.

The Taoiseach's attitude towards reaching a consensus on this issue is worth examining. He failed to differentiate between his position as Leader of Fianna Fáil and his constitutional position as Taoiseach of a Coalition Government, which carries with it an obligation to take on board the views of his Coalition partners; but he failed to do that.

Mr. T. Kitt

The Deputy is very concerned about the Progressive Democrats.

Mrs. Taylor-Quinn

The Taoiseach sought consensus among the Opposition parties on this side of the House; but that was just a charade, an attempt to convince the public that he was serious about the matter. However, the public are not convinced of this. It was nothing but a bogus exercise on the part of the Taoiseach.

The referendum of 1983 was not just a pro-life referendum. As we realised in the following years it was about frightening and controlling women. The Twelfth Amendment of the Constitution that is before the House this week is similar to the 1983 Amendment. That Amendment was anti-women in its origin and its implementation and the wording of the Twelfth Amendment is also profoundly anti-women. It is unfortunate that the Government are not prepared to examine in detail the circumstances in which pregnant women should be treated medically. None of these issues has been argued in detail.

I was particularly disappointed with the contribution of the Minister for Tourism, Transport and Communications and I am very concerned at some of the statements she made. She said that the concerns of women mirror the concerns of doctors and that the Amendment is not seeking from doctors a greater degree of certainty about the risk to a mother's life before providing treatment. She went on to say that pregnant women will receive all treatment necessary to protect their health. At no stage has a Government Minister outlined in detail how treatment will be provided, in what circumstances it will be provided and who will make the decisions. There are many questions in relation to that aspect that have not been elaborated on in this House.

The Minister for Tourism, Transport and Communications said that if the words "as distinct from the health" were omitted from the proposed Amendment, any future hard case which is not related to a life-threatening condition could be the ground for abortion. That is scaremongering. The Minister did not elaborate on this matter. She mentioned the Bourne case of 1938, but she failed to say that no legislation was introduced in Britain subsequent to that case. When they attempted to introduce legislation in 1968, 30 years later, the whole question of abortion had blown up in England.

The Minister went on to say that a pregnancy may be terminated if doctors form the view that even after recovering from childbirth other treatment for whatever illness the mother was suffering from during the pregnancy would be ineffective to save her life. I would ask the Minister of State with responsibility for women's affairs who is present in the House, what direction is being given to the medical profession in taking these decisions? Is it not true that medical practitioners will find themselves in a serious dilemma as regards the course of action to take in particular instances? For example, if a pregnant women is suffering from breast cancer it has been stated that she will receive the treatment she requires. We all know that a variety of treatments may be provided for breast cancer, some more effective than others. For instance, some doses of chemotherapy and radium treatment are more effective than others, and doctors will have to decide the strength of treatment to be applied.

In this regard a serious question arises in relation to the life of the woman. Cancer is life-threatening, but it could also be regarded as a danger to health. Therefore on one hand a decision will have to be made in relation to the health of the woman while on the other hand a decision will have to be made in relation to her life. We must remember that the life we live is determined by the health we enjoy, and in certain instances it will be impossible for a medical practitioner to make a decision. The Government have a responsibility to examine in detail those instances and to set down in legislation guidelines for medical practitioners as to how they should act in those circumstances.

There are women who are concerned and confused about this matter and they do not know whether to vote for or against the wording of the amendments. They are particularly concerned at the statement by the Taoiseach that if the wording in the Twelfth Amendment is not carried he will bring in legislation based on the X case. Such a statement is highly irresponsible and emotional and is scaremongering. The Taoiseach has a responsibility to introduce legislation that will be determined in detail by the House.

Debate adjourned.

Dáil Éireann díospóireacht - Wednesday, 21 Oct 1992

An Bille um an Dóú Leasú Déag ar an mBunreacht, 1992: An Dara Céim (Atógáil). Twelfth Amendment of the Constitution Bill, 1992: Second Stage (Resumed).

Dáil Éireann díospóireacht -
Wednesday, 21 Oct 1992