Deputy Madeleine Taylor-Quinn was in possession. The Deputy has 32 minutes left.
Private Members' Business. - 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).
With the permission of the House, I wish to share my time with Deputy Dukes.
That is quite permissible.
Before the adjournment of the debate I expressed concern at statements made by the Minister for Tourism, Transport and Communications during the course of the debate in the House today. I am particularly concerned that, as the only woman Cabinet member, she expressed questionable opinions on this amendment. She said that any wording which provokes the extremes of an argument into such vehement antipathy requires courage. I suggest that any wording that raises so many arguments from so many reasonable people must be seriously flawed. Rather than saying that it requires courage the Minister should seriously question the flaws in the wording. A common theme throughout the debate from the Fianna Fáil side of the House is that anybody who does not agree with the Fianna Fáil view is an extremist, a political opportunist or indeed an abortionist, or has some hidden agenda. That type of contribution to this debate is extremely unfortunate because what we are attempting to address is a very serious and sensitive issue.
On 17 February 1983 in volume 340, column 494 of the Official Report, Deputy Geoghegan-Quinn said:
... can we be certain that the existing ban on abortion will not be removed as a result of action in the courts? The referendum will give the people rather than the courts ultimate control over policy in this area. Abortion could become legal as a result of a decision by the Supreme Court.
Deputy Geoghegan-Quinn went on to say in column 496 of the Official Report:
It must be clear that the only way to make certain that abortion does not become legal in Ireland in the coming years is to write into the Constitution an amendment which reinforces the existing law against abortion.
We now know that Deputy Geoghegan-Quinn was wrong then. Is there any reason to believe that her contribution in this House today is right? The wording of the amendment is extremely flawed and deserves much examination.
Everybody in this House is pro-life. I find abortion difficult to deal with and I am opposed to it; but as a publicly elected representative I have a responsibility, as does every other Member of the House, to adequately and properly address the difficult and tragic situations which arise every day for a minority of women and for the unborn. In these minority of cases difficult choices have to be made. The Taoiseach and the Government have a responsibility not to put this greviously flawed amendment to the people for a decision. It would be more opportune for the Taoiseach to enter into genuine dialogue with all the political parties to resolve this complex question.
I thank Deputy Taylor-Quinn for sharing her time with me and giving me an opportunity to speak on this matter. Like most people in this House, when I reflect on my political past there are some things that I regret. I can honestly say that what I regret most in 11½ years in this House was that in the autumn of 1982 I did not do enough to oppose the nonsensical idea that we needed to write into our Constitution a pro-life amendment, as it was called. I remember that time very well. Perhaps it would not have made much difference, but I regret, as perhaps do other people in this House, that we did not speak out much more clearly and forcefully against the utter futility of that whole campaign, which was demonstrated to us very clearly this year and which is the reason we are having this debate again. There may well be people on all sides of the House today who, looking back on this debate in a few years' time, will regret they did not on this occasion speak out more clearly against the futility of what is being attempted in these three amendments before us.
It will not take a few years but a few months at the most.
Perhaps some people will reflect upon that between now and 3 December, or indeed between now and the conclusion of these debates, and learn a lesson from it. I remember very clearly the occasion in the autumn of 1982 when we had a meeting with representatives from the group who proposed the amendment — I will say nothing against those people personally or about their motivation — and I regret that more people did not say how unwise the amendment was. We regret that now that we find ourselves in a mess. We are having this debate as a result of that attempt to do an impossible constitutional thing at the time.
The campaign at that time was based on the proposition that neither politicians nor the courts can be trusted, a very mistaken proposition. A wording was presented to us as being an infallible way of preventing abortion. The people who recommended that wording — the pro-life campaign, Fianna Fáil and a great many other groups, a member of one of which spoke this evening — gave, in spite of advice to the contrary, what they believed to be categoric assurances that it would have the result they wanted; but it had precisely the opposite result. That has vindicated the advice given at the time by the then Taoiseach, the Attorney General and others, including a great number of people who made clear their reservations and were branded as abortionists.
Another reason for this debate relates to the most appalling mess made by the Government of the infamous Protocol to the Maastricht Treaty. We still do not know where that came from, why the Government believed it should be inserted in the Treaty and what its function was to be. If it ever had a function, that has been totally distorted, perverted, and turned upside down since, to the point where yesterday neither the Taoiseach nor the Minister for Justice could tell us what the implications of these three proposals for referenda will be. Today we have to hold this debate because of gross misjudgments by a self-appointed lobby and by Fianna Fáil.
It is outrageous that another Bill which we will debate next week — the Referendum (Amendment) (No. 2) Bill — which prescribes a title for the guidance of voters in each of the three referenda, describes the Twelfth Amendment to the Constitution on the ballot paper under the heading "Right to Life", which is a cyncial distortion of what it is about. If the ballot paper should have any heading it should be in the full sense of the Bill before us "Termination of Pregnancy" and nothing else.
It is also outrageous that members of the Government should accuse anyone in this House of wishing to sow confusion in this debate. If I may be personal, I was disappointed to find among members of the Government making that accusation the Minister for Tourism, Transport and Communications, a person for whom I have considerable respect as a politician and a colleague. It is perverse and bizarre for members of the Government to accuse the Opposition of sowing seeds of confusion. The Taoiseach said different things on different occasions about what the words in these amendments mean. The night after the Taoiseach made his pronouncement the Minister for Health said that the words mean something different; the Minister for Justice said that the words meant something different again. If anyone in the House is sowing confusion in regard to the meaning of the Twelfth Amendment to the Constitution, it is the Government. They do not know what it means and they cannot credibly give us any guarantees about what it means. Ministers are confused and the worst part is that they are confused about different things at different times. There is only one thing about which we can be absolutely sure in this debate, that we have every reason to be deeply suspicious and sceptical about any assurances given to us by the Taoiseach or by any of his Ministers on what the words in the Twelfth Amendment to the Constitution mean. The experience of 1983 should clearly show that.
Of course the Government are deeply divided on the issue. I listened attentively to the Minister for Industry and Commerce and I also read his circulated text with considerable interest. There is a great deal of common ground in regard to the issues between the Minister and myself and I share many of the concerns which he set out clearly in his contribution. I find it almost incredible that Minister O'Malley should hold such views and still decide to act, as he and his colleagues in the progressive Democrats apparently intend to act, when we come to vote on these issues. I said I found it almost incredible. I use the word "almost" advisedly because his position would be utterly incredible if there had not already been a series of Cabinet disagreements on very important issues where, in each case, the Progressive Democrats decided that the issue was not important enough to force their resignation from Government.
Given all that happened since the election in 1989 — and the multiplicity of undertakings in Mark I and Mark II of the Programme for Government which have not been lived up to — I wonder what kind of political cataclysm would be required for the Progressive Democrats to take their courage in their hands and decide that it was time to withdraw. At present they remind me of a party of Arctic explorers marooned on an ice floe of their own making. They know that if they stay there it will melt and they will be submerged and if they jump off they will probably be drowned.
The proposed Twelfth Amendment to the Constitution deserves to be rejected, even if only on the grounds that it contains those fatal words "as distinct from the health" when it speaks about mothers. I have heard all the reasons the Government gave for the inclusion of those words and I have also heard the medical and legal advice which lies behind the decision to include them. However, I must emphasise that this issue — as in the case of the Eighth Amendment to the Constitution — requires Members of the Oireachtas to decide the form of the words to be put before the people and whether any words should be put to them. It is not a matter for decision by any lobby groups, no matter how well intentioned; neither is it a matter for decision by lawyers or medical experts. By all means let us take the advice of people who have locus standi in regard to this issue but, at the end of the day, the issues must be decided in this House, using the advice available to us according to our lights.
The advice on the health issue — as indeed in regard to all the other issues — is not unanimous. Doctors and lawyers differ but politicians still must decide. Our experience of the Eighth Amendment should surely show us that if we are given conflicting, well-founded advice on any part of the issue it is prudent to assume that some of the advice which warns us of possible unintended effect, to borrow a word from another part of this debate, should be taken very seriously, even if the possibility of those unintended effects seem remote. That is the central lesson of the Eighth Amendment to the Constitution.
There is another consideration; having listened to all the medical and legal advice I return to my politician's perception of what modern medical practice seems to tell us about how we should treat the individual. The lesson surely is that we must take a holistic view of the interaction of all aspects of the health and life of the individual. I was very impressed a few moments ago to hear Deputy McDaid say that, he found that our experience of life is determined by our health and we cannot separate the two. It is good medical practice to treat the person as a whole, as a physical, emotional, intellectual and spiritual being. Good medical practice in any branch of medicine requires that we have regard for each component of the individual personality and being. To separate issues of health from issues of life seems to be utterly artificial. The inspiration for the inclusion of the words in the proposed Amendment seems to come from what I can only regard as a totally unfathomable distinction drawn by the Attorney General between life threatening and life shortening conditions or events.
We do not have access to the Attorney General in this House. However, I should like to ask him what that distinction means. If any Member of the House was walking down Kildare Street and was set on by a mugger who held a knife to his or her ribs, would we regard that as life threatening or life shortening? Would we give a damn about the difference between the two? I do not know how the Attorney General can use this kind of artificial distinction as a basis for putting words into our Constitution. How can any sane person base a constitutional provision on that kind of nonsensical distinction? It is surely the kind of approach to medical practice which, for years, attempted to resolve the problem of physical and mental health experienced by women in our society and in other societies by the prescription of Librium and Valium in the hope that mild sedation, physical and mental, would help a woman to deal with her problems by ignoring them instead of having them resolved. That view is, in turn, part of a view of women which is peculiar to a particular blinkered male point of view which holds that women are different and, therefore, inferior. It is a view which regards motherhood as a function or duty rather than as a fundamental, personal, emotional and physical choice which should be entered into only after great deliberation. I reject that view of women and I will have no hand, act or part in putting through a constitutional provision which treats any women that way — a wife, mother, sister, aunt, friend, neighbour, a colleague or even an opponent. We should not revert to that nonsensical, inimical and life threatening view of woman's place in our society from which I had hoped we had begun to move away.
Taking that view on these issues, I have to reject utterly any assurance given to us by the Minister for Justice, the Minister for Health or any other Minister about what that particular exclusion in the text of the amendment means for women. None of them is in a position to give us any assurances as to what that exclusion means for the treatment of women in Ireland if that referendum is passed. I am prepared to go as far as to believe that those Ministers may very well mean that the assurances they give reflect their own personal and true intentions, but they cannot expect us to believe, in the light of what happened with the Eighth Amendment to the Constitution, that they can guarantee that those words will actually mean what those Ministers say they mean and only that. When any doubt or challenge arises the only body that can tell us what the words mean is the Supreme Court. It is a gross error to introduce into our Constitution a distinction between threats to life and threats to health based on this insane lawyer's artificial distinction — and it is the distinction that I say is insane, not the lawyer — between life threatening and life shortening, which, as far as I have been able to find out, has no basis whatsoever in medical doctrine, practice or fact.
The proposed amendment also contains a reference to self destruction that excludes the risk of self destruction from being a justification for termination of a pregnancy. Conventional wisdom as we have heard it in the past few weeks and the weight of legal and medical advice seems to indicate that if we were to allow the risk of self-destruction as a grounds for abortion what we would be doing in effect is providing for open abortion, abortion on demand. The Government say they want to avoid making abortion available on demand, and the way they choose to do so is by excluding the risk of self destruction from the terms of the proposed amendment. Incidentally, the Government tell us that that is the only way to avoid making abortion available on demand. The same Government tell us that if the proposed amendment is not carried they will introduce legislation that will have the effect of ensuring that the Constitution as interpreted by the Supreme Court in the X case cannot and will not be used as a justification for widespread abortion, abortion on demand. The logic of that seems to me to be that the Government are saying that the Supreme Court decision means abortion on demand, and they are going to legislate. The Government say that they do not want to have abortion on demand. If the Government are going to legislate they must therefore intend to propose to us — however much in terrorem it may be — something that would limit, circumvent or restrict the grounds for abortion in some way. Unless the Government are being completely cynical in this, with the intention of producing words only to terrorise the people who might have the temerity to vote “no” in the referendum, the Government must believe that there is some way of restricting the scope of application of the Eighth Amendment as it now stands. If the Government believe that it would be possible to do that in the event that the Twelfth Amendment were not carried they must also, if they are even half-way honest, believe that that could be done even if a modified version of the Twelfth Amendment were put before the people and passed.
I have heard the legal and medical advice and I have listened to what conventional wisdom says, and I do not have anything to put in its place, I readily admit that, but I have to confess that that conventional wisdom and legal and medical advice leave me sceptical. Simplistic argument from alleged cause to possible effect leaves me unsatisfied, whether that argument comes from a legal expert, a medical expert or a constitutional commentator.
Even more than that, one thought keeps coming back to me as I listen to all this debate: how will we react and what will our consciences say to us when the day comes — as it most surely will — when it is found that a woman, by reason of being pregnant, has taken her life, notwithstanding a supportive family, social and community environment? For the relatives of any such woman and for anybody who cares, the current conventional wisdom and all of the legal and medical advice will disappear like a puff of smoke and those of us who will know about it will be left with a huge question mark.
I am very conscious of that aspect because my party have proposed in the Seanad a Bill to decriminalise suicide. I think many people in the House would support that measure. That Bill sets out to achieve a certain number of objectives. We want to decriminalise suicide in order that coroners can bring in verdicts of suicide so that it will be possible to investigate, if we can, what the causes of the suicide were. We all know that there are many suicides in this country that are not recorded as suicide for all the reasons with which I shall not bore the House tonight. What if we were to succeed in decriminalising suicide and were then to find out that in this country every year some women — I do not know how many, the figure is not ascertainable — take their own lives, are driven to that extremity, because they are pregnant and feel that their circumstances would not allow them, for one reason or another, to carry a baby to term and to raise that child? I do not know how many such cases there are; all I know is that there are some.
There might very well be cases in which, though the family of such a woman, her extended family, her neighbours and her friends would have had among them people who could have been relied on to support the woman both morally and materially in the raising of a family, she decided that suicide was the only way out for her. What does conventional wisdom say to us about a case of that kind? What do the legal experts and the medical experts tell us about such a case? They cannot tell us anything. Yet this Government say they are confident they have every good reason for excluding the ground of suicide as a basis for even considering a termination of pregnancy.
Not all of the advice goes in the same direction. I shall not bore the House by going into detail. I shall only make reference to the advice. In The Irish Times of Saturday last two eminent practitioners produced a report on their review of the literature. Also last week the Psychological Society of Ireland produced their own statement and a review of the research. It makes very interesting reading and there is a great deal more to be examined and debated. Those reflections about the health issue and about the suicide issue should surely be reflections that at the very least would cause the Government to pause in their gallop towards holding the referenda on 3 December.
There are apparently three reasons the Government are anxious to go ahead with these amendments. The House heard the Taoiseach on that subject today. He says he has given his word. It is very honourable to keep one's word, but the Taoiseach expects the Opposition parties and this House to help him keep his word on this issue, when he is not too worried about others, when his Government and a Cabinet subcommittee have spent six or seven months combing out the issues — and they are still confused, they still think the words mean different things — but expect the House in the space of a few days to come to conclusions on that. The second reason the Taoiseach apparently gave was that he wants to get the show on the road, whatever that means. If that is part of the Taoiseach's motive I would have to question his seriousness. The third reason, which the Taoiseach apparently gave in public on RTE one day last week, is that if the referenda are delayed for any time after 3 December the referenda and Christmas shopping will get in each other's way. If that is what the Taoiseach has in his mind then I have to conclude that he has no real conception — to use a malapropism — of what he is at and the importance of the issue he is trying to rush through the House.
I know the Taoiseach is thin on philosophy, but that is absolutely threadbare. If the Taoiseach and the Government are really serious about a proper potitical evaluation of all these issues then they have to give more time to this. I do not think even the Government have had a proper political evaluation, or else why would the two parties in Government be totally at odds on the issue and why would Ministers in the same Government be running related briefs telling us that the words mean different things at different times to different people?
I conclude where I started. Frankly, I would be unable to live with my conscience if we repeated the same mistake that we made in 1983 and allow ourselves to be pushed into a fundamental and unnecessary, but certainly ill considered, set of referenda without the political, human and moral dimensions having been properly debated, whatever about the medical and legal implications.
I wish to share my time with Deputy Roche. I understand we have 45 minutes. First of all, I would like to state that I do not question the intention and the bona fides of the Government and the manner in which they address this very complex and difficult issue. When the courts interpret what we do here they will not look at what was said by any Minister as being his intention; they will look at what we insert into the Constitution or into the legislation. They have made it very clear that is no part of their function to look behind what is written either in the Constitution or in the legislation. They would see it as an obligation to implement that intention through the appropriate legal formula. Second, in relation to intention, there is some precedent where intention has clearly not been realised. Perhaps the most significant precedent is that of the intention of David Steel when he introduced the Medical (Termination of Pregnancy) Bill in the House of Commons on 22 July 1966. When introducing that legislation he said, and I quote from column 1075 of Hansard of 22 July 1966:
We want to stamp out back-street abortions, but it is not the intention of the Promoters of the Bill to leave a wide open door for abortion on request.
Clearly that was his position and that of those who promoted the Bill at that time. In the event it is a matter of fact that what has resulted in England, despite the intentions and the bona fides of David Steel and his co-promoters, has been without any doubt abortion on request. Therefore we have clear indications that intentions alone will not bring about the result we want to achieve to regulate order in our society in the manner in which we feel obliged to do it. At that time he also said there were various estimates of the number of abortions taking place in England, that these were somewhere in the region of 40,000, but some people said the number could be as high as 200,000 per annum. By any objective judgment at this point, whatever about the accuracy of the estimate of between 40,000 and 200,000, we also know as a fact — and facts speak for themselves — that the number of abortions in England now is a vast multiple of the higher number of 200,000.
Five thousand on a yearly basis.
That may be. Perhaps the Deputy would allow me to make my case and then he can make his. If the Deputy wishes to question those figures, fair enough. Incidentally, David Steel also said, and I quote from column 1070 of the same debate:
Therefore we find that whereas at one end of the country — in Aberdeen, under the wider ambit of Scots law and under the practice of Professor Sir Dugald Baird and his colleagues — a fairly large proportion of those desiring medical terminations of their pregnancies are able to achieve this, in some other parts of the country it is almost impossible.
The other three means are all illegal.
Certainly, Britain has changed dramatically from the time that that legislation was introduced, the purpose of which was not to introduce abortion on demand. For that reason it is a very deep and complex issue.
Like many others in Ireland, I have a deep abhorrence of abortion. Equally — and I hope I share this view with the vast majority of Irish people — I want to ensure that all necessary medical treatment at all times is available to save the life of the mother in any circumstance of the kind we are dealing with here. I have to acknowledge I am dealing with a matter in which I do not have either competence or professional experience. I should like to quote from one of a number of consultants who wrote to me:
My experience over forty one years, and I have seen a few maternal deaths, has been that there are no indications for direct abortion to save the woman's life. To suggest otherwise is not true. This is not to say that women who require treatment of any illness in pregnancy should not receive it, even if this should place the baby at risk. It is possible that, occasionally, the risk may result in the loss of the baby, but this is not the intended effect of the treatment which is to cure the mother.
He goes on to state:
If there was a case for carrying out abortions in pregnancy to save a mother's life, surely this would have been reported in the maternity hospital statistics from Dublin, which have been published for fifty years or more. In these reports all abnormal maternity cases are analysed in detail, including any maternal deaths that may have occurred.
That is one man's view and I acknowledge, as the Minister has said, that there are different views on this. But it does appear that these reports, which are there to inform and update the consultants involved, are consistent in that direction. As a consequence of what has happened since 1983 it is fair to say that the public at this point, even in conservative Ireland, would wish that we their representatives could be addressing our minds to something more pressing for them, even those who reject and abhor abortion.
There has been a sorry sequence of events since 1983. I think I am free to say — and I will allow myself to put it on the record because it is well known within our party — that when it was originally proposed in 1983 that I strongly advised against the introduction of the pro-life amendment as it was called. I saw no need either because of the constitutional position or the legal position. I found myself on one occasion even in the position of taking an action based on the Civil Liability Act, 1961, in which the unborn had acquired a right through what we did here to an action after birth in respect of a trauma to the mother before birth. To me at that point the line was consistent and clear, but in the event we had a referendum. My concern then was that the words that were being imported would be capable of interpretation of the kind we have now had and therefore we have had the reference to the Supreme Court. I might have a view on that too but I do not propose to offer it here. The Supreme Court gave their interpretation of the formula of wording used based on the criterion of real and substantial risk to the life of the mother and the risk of suicide. The Amendments being put forward now are a consequence of that decision.
The constitutional Amendments relate to three elements: the right to travel, the right to information and the substantive issue. I have said consistently — I hold this view more strongly now than when I first expressed it at a Fianna Fáil parliamentary party meeting held some months ago — that it is a nonsense in a democratic country to hold a referendum on the right to travel. It should be pointed out that totalitarian states such as the Soviet Union, Albania and China only survived by preventing their people from travelling. If any of those countries had decided to introduce a referendum to change their constitution so that people would have the right to travel it would have been regarded as a significant move. As I said, thousands of Irish people have exercised their democratic right to travel and it is a nonsense to try to introduce into our Constitution a right which already exists.
I have reread the judgments given by the Supreme Court judges in the X case. I obtained copies of these judgments from the Library. Unless there has been some change in the meantime and those judgments have been somehow changed or qualified, I cannot agree with the Minister's statement, and I quote:
The Supreme Court decided by a three to two majority that while an injunction would not be given to restrain a woman from travelling abroad, such an injunction can be given to restrain travel abroad to obtain an abortion where there is no such risk.
I cannot find such a statement in my copies of the judgments. I have read the judgments delivered by Mr. Justice O'Flaherty, the late Mr. Justice McCarthy and Mr. Justice Hederman. The Chief Justice makes it quite clear that having dealt with the substantive issue, the other matters come within the category — this term is well known to lawyers — of obiter dictum. He offered views in relation to the right to travel. As I said, I have read the Supreme Court judgments and I cannot find any reference to the need to limit the right to travel. Of course, this is not the major issue. Therefore, I do not think it is necessary to introduce a constitutional amendment in this regard.
I wish to refer to the right to information. Many views have been expressed about the Supreme Court decision, whether they were right or wrong and whether they correctly interpreted the views of the people. It is a principle of the Supreme Court that they bind themselves by existing decisions unless they change them. I am referring to the principle of stare decisis, stand by your decision. As recently as 16 March 1988 in the Attorney General and Open Door Counselling Limited case the Supreme Court held, and I quote:
The Court doth declare that the activities of the Defendants, their servants or agents in assisting pregnant women within the jurisdiction to travel abroad to obtain abortions by referral to a clinic; by the making of their travel arrangements, or by informing them of the identity and location of and method of communication with a specified clinic or clinics are unlawful, having regard to the provisions of Article 40.3.3º of the Constitution.
That is the law as it stands. The Minister said that the issue of information and counselling did not come before the Supreme Court in the X case but in previous cases the court decided that the dissemination of information on abortion was unlawful having regard to Article 40.3.3.º This is correct. However, he went on to say that one effect of the decision in the X case appears to be that it is not unlawful to communicate information. I am not going to argue this point; I am simply saying that that is simply an interpretation of what would appear to be the effect when the law and the Supreme Court decision make it clear and do not need an interpretation. However, these are not the crucial issues in this debate.
A number of issues arose out of the Supreme Court decision in the X case, one of which was the suicide issue. The Government have decided to vary the Supreme Court decision in regard to the provision of information. I agree with them in this respect. I do not question the right of the Government or this Legislature to do that. To a certain extent they are also varying the Supreme Court obiter dictum in regard to the right to travel. This is not of major importance. As I said from the beginning, this is not even an issue at this point; we are asking the people to vote on what I regard as a characteristic of democracy.
If we are varying the Supreme Court in those areas, I do not understand why we should feel totally bound not to vary their decision in regard to the substantive issue. During the course of the X case the State argued at all times that the test to be applied was one of immediate or inevitable risk to the life of the mother. The Supreme Court held, as they are entitled to do, that it would be more appropriate to have regard to real and substantial risk to the life of the mother. This is where I have major problems. It is open to the Government to make it clear that they believe — I believe this view is shared by the vast majority of Irish people — the test should be of immediate and inevitable risk to the life of the mother as distinct from a real and substantial risk to her life. However, this is not being done. I have serious concern in this area. The Twelfth Amendment of the Constitution Bill states:
It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self-destruction.
The use of such phraseology invites interpretation. Whether we agree or disagree — I respect the view of those people who disagree — about the provision restricting divorce, at least it clearly states that no law shall be enacted to provide for the dissolution of marriage. Some say that this provision should not be there while others say it should be, but at least it is clear. If we use phraseology such as "save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving risk to a real and substantial risk to her life" we run the risk — I agree with the intention of the Government in this area — of a new range of interpretations which quite frankly I do not think is desirable. The intentions of the Government in this area could be effectively met by saying "it shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life of the mother". The provision in regard to the rights of the mother will not in any event replace the original Amendment; it is an addition to it and the courts can interpret it. I am very worried about this wording. A cogent case can be made for the introduction of legislation to clarify and regulate the Government's intention in this area.
(Limerick East): Hear, hear.
I think it is fair to say that the majority of doctors in professional practice who will push out the limits are not those who adhere to the standards of the General Medical Council. They were not the people who pushed out the limits in the United Kingdom. It was others who took a different interpretation, one not supported by the majority of their colleagues, not to mention the Medical Council. They pushed out the limits and the 40,000 or 200,000 abortions, depending on the figure one took, became millions. I am aware that some of those are Irish women but that is not a major factor in the huge increase in the abortion rate in England. For that reason, it is desirable that we leave open the prospect of introducing legislation to regulate the application of this referendum. I am glad the Minister has not closed his mind to this prospect.
This is a very complex issue and I acknowledge that the Government have inherited it. I accept that the Government of which I was a member, in a sense, passed this problem on but that is history. I hope that what we are about to do now will not give rise to further complications which will mean that we will be constantly bedevilled by discussion on this and, at the end of the day, not protect the life of the mother or the unborn one whit more than in 1983. This wording concerns me but the position arising from the Supreme Court decision requires certain adjustments, otherwise a threatened suicide could be put forward as a case for abortion.
I hope that what we do now will mean that we will have finality, clarity and protection for the life of the unborn and the mother. Having regard to the practice over the years I do not see why there is any reason one should be put at risk to protect the other; 50 years of practice proved that not to be necessary.
I will compress my comments and with the permission of the House share my time with Deputy Garland who has indicated he would like to speak for a few moments. I have no wish to deny him the opportunity to speak; it is appropriate that he should do so.
Is that agreed? Agreed.
This is a very complex and stark issue. There are few issues which could be of more fundamental importance than it. I am pleased that the debate tonight has been conducted in a somewhat calmer tone than some of the contributions last night.
There is a great tradition in Ireland of sticking our heads in the sand in the hope that issues will resolve themselves, of hoping that further discussion, another report or reconsideration of the issue will push decision day to the point where the problem resolves itself. However, that is not the worst characteristic of public debate in Ireland. The worst characteristic is that our tradition has been to tear ourselves asunder in debate, not simply to prove one's point but to destroy the other's viewpoint. Some of the epithets that were slung around last night had that venal underpinning in them. This latter characteristic of Irish debate was well dealt with in the beef tribunal last week when a former Taoiseach quoted a stanza from W.B. Yeats's poem "Leaders of the Crowd". He stated:
They must to keep their certainty accuse
all that are different of a base intent pull down established honour; hawk for news,
whatever their loose fantasy invent.
That characteristic of debate simply adds to the confusion, distaste and dismay that must exist up and down the country with regard to this issue presenting itself again.
Another characteristic of Irish debate is to descend to humbug and hypocrisy and to focus on the past rather than the future. There has been a great deal of rewriting of history, of focusing on the past and wondering who was more venal than whom in 1982. That does not matter. All that should matter is that we are faced with the reality of the problem and we must make decisions in that regard. Those distressing elements have existed in this debate.
I have my certainties on this issue and I hope I can express them without accusing anyone. I know there are diametrically opposing views in this House, I have always taken the view that abortion is abhorrent. That is a deeply felt personal conviction but if we try meddling in this issue and take on board some of the lunatic suggestions that have been put forward, we would end up with a more horrific situation than we found ourselves in earlier this year. I hope I can express my views without being accused.
Three parties in this House have a very clear view on this issue. The Democratic Left Party hold a view which I do not share but they have expressed that view very honestly. They are a pro-choice party although Deputy Byrne might take issue with the use of words "pro-choice". I do not say that they are pro-choice in an accusatory manner. They believe abortion is a right which, subject to certain conditions — they have spelled them out — should be available. I do not agree with Democratic Left but I admire their candour. They are not afraid to express their views and we should acknowledge courage where we see it.
The Labour Party believe that this whole area should be dealt with in legislation. It is clear that this view also exists in other quarters of this House. They realise that this would mean legislating in regard to the decision in the X case which would mean going beyond the common interpretation of the people's judgment as recorded in the 1983 referendum. Deputy Ferris gave his interpretation of what the people did in 1983 with which I am in accord. I do not agree with the view of the Labour Party. If one wishes to protect a fundamental right the only appropriate place to do so is in a constitution. However, I respect the fact that they have a view and their willingness to put it forward with clarity. I also laud their consistency because as far back as 1982 they argued that all that was needed in this regard was legislation. I differed from them at that time. I was not a participant in the debate in 1983 simply because I was not here, not because I was not involved in politics. I had grave doubts about that whole matter at that time. In Government, the Labour Party argued that legislation could achieve what most Irish people wanted.
The view of the Fianna Fáil Party was elaborated on by the Minister for Justice last night. I do not intend to add or detract from that view because it was made clearly. Some of the epithets from other spokespersons distressed me. For example, some of the language used by Deputy Shatter was objectionable, unnecessarily vitriolic and personalised. I do not know what can be achieved by that in this debate. There will be enough bitterness in the weeks running up to the referenda without adding to it. The wording the Minister put before us has been the subject of a great deal of parsing and analysis and will be the subject of a great deal more. The two parties I mentioned have indicated their outright opposition to it. I accept the sincerity of their arguments but I do not find them persuasive. I find it impossible to accept some of the philosophical underpinnings of their arguments but at least I know where they stand.
The main Opposition's party's response to this issue is another matter. They object to the starkness of the wording. After the wording was published I admit that I was stunned by what appeared to be a very stark set of words, the reality of course is that this is a very stark issue and whatever about the starkness of the words, they at least go to the heart of the issue. The fact that there are people on both extremes of this argument, I do not mean extremes in this House but extremes outside this House, who have found almost as much equally to condemn, suggests to me that the Minister has found middle ground.
I cannot understand, for example, why Fine Gael are making such an issue out of the reference to health. I realise it is a stark set of words. I cannot understand why people, who object to those words but at the same time understand the reason for their inclusion, cannot produce an alternative set of words. The arguments put forward by the Minister for the use of that particular phrase seem to be cogent and clear. They at least give us choices with which we can agree or disagree. If we remove that phrase, which I understand many Members have found objectionable, we will create a situation which would not be favoured by the vast majority of Deputies and we would be misleading the people in that they might have to bear the impact of another referendum for another change in the Constitution.
The Irish people and many supporters of the main Opposition party and the majority of the backbenchers I have spoken to, would seem to be at variance with some of the views of the party's Front Bench spokespersons. Though I have tried to understand exactly where Fine Gael stand on this issue I have failed to do so. From the speeches made here over the last two days the party appear to be facing at least three different directions. They want to extend the debate. Their spokesman who regularly comes into this Chamber to rail against the Government for failing to bring forward proposals on different issues argues that the timetable put forward by the Minister for this issue is too short. Even though we are going to tear ourselves apart again on this issue over the next seven weeks, there seems to be a suggestion that if we prolong the agony it would in some way be a good thing. I contest that this is not the case.
Their spokesman tells us that he has had discussions with members of the medical profession who shared his views in regard to the danger of incorporating the reference to health. I have had discussions with members of the medical profession as well. There are copious references signed by people in authority in the IMO, by gynaecologists, obstetricians and psychologists. In all the specialties there are people on both sides of the argument. We all know that there are medical doctors on both sides of the argument. It has been suggested by the leading Opposition party particularly, that there is a view in regard to the psychiatry aspect. I read Dr. Anthony Clare's paper with interest. It was a very absorbing and timely paper and it has been referred to a good deal in this debate in relation to the suicide issue. Dr. Anthony Clare is not the only psychiatrist with a view on this. Professor Patricia Casey's article in the Irish Independent on 18 March portrays a contrary view. I will deal with the suicide issue later.
We would have little difficulty in finding lawyers and barristers who differ — verbal battles and dextrous differentiation are the lawyers' trade — and Deputy Shatter knows that better than most.
This matter is of such a fundamental nature and opinions on it are so polarised that it is futile to suggest that if we wait another week, another month or another year that some commonly acceptable set of words, which encompass all the various aspirations, will emerge. We know that that is not the case. It is better to face that now and to bring the issues, stark as they are, to the electorate at an early date, rather than prevaricate endlessly on this issue. Further prevarication on this issue would be dangerous.
There are two other aspects of the contributions from Fine Gael which I find extraordinary. One was the manner in which they dealt with the suicide issue. My understanding was, with the exception of one or two conscientious objections from that party, that in general the party accepted that the suicide issue had to be addressed and, in fact, there was agreement with the Government that it should be excluded as a reason for allowing abortion. Yet tonight that does not appear to be the line taken by Deputy Dukes and by other speakers. I am amazed at what seems to be a change of direction in the party's policy — if they have a policy on this — during the course of the contributions over the last 24 hours.
Much attention has been paid to a very timely produced paper by Dr. Anthony Clare and a colleague last weekend. That paper provided a service in that it gave an analysis of some of the material that has been published on the issue and the relationship between suicide and abortion. I read that paper and many other papers with interest and I have some of them here. The only area in which there appears to be any common agreement in all of these papers is a surprising one. There is a conclusion in a paper by Louis Appleby on which there seems to be general agreement. The paper gives the conclusion that motherhood seems to protect against suicide. Concern for dependants may be an important focus for suicide prevention in clinical practice. However, the point may be made that it is not those who move in this direction that we should be considering, but those who are tempted or pressured to go in that direction. I believe the proper and appropriate method of dealing with threatened suicide is not abortion, the forcing of one trauma on top of another trauma for a woman. I believe that care, attention and nursing, and if necessary an expansion of psychiatric care, even in-house care, is what is required in that particular case. I am not a doctor and I am not qualified to give an opinion. The only answer I can get from an earnest and honest search in existing literature that I can produce from one of the universities is that there is great confusion and no general conclusion among the psychiatrists in either this city or on the international front.
Another aspect of the contribution from Fine Gael which I had hoped to deal with at length but which I will now deal with briefly is the continuous reference back to 1982. I do not believe that references back in history will serve any purpose. If there was culpability at that time it was shared. It is, after all, a historical fact that it was Deputy FitzGerald and the then Senator Hussey who first met the pro-life movement in April 1981. They gave an instant pledge without any proper consultation as to precisely where such a measure would lead. Deputy FitzGerald suggested last night that it is politically acceptable to move in one direction because your opponent is moving in that direction, but it was Deputy FitzGerald who initiated the movement in that direction. I do not say that Deputy FitzGerald was wrong. If there were cogent arguments which suggested there was going to be a constitutional threat to the life of unborn children he was probably right and he would be on the same side as I on that issue.
Would the Deputy conclude at 10.17 p.m?
I want to share ten minutes of my time with another Deputy so I will conclude very shortly.
That is all the time you have left Deputy Roche.
I will conclude on this point. We should move away from this writing and rewriting of history. The reality is that it has nothing to do with this debate. We cannot change history, but we can learn from it. The debate in 1983 — during which there were many attempts by Deputies to tar each other — was one of the most disgraceful episodes in our democracy. I would hope that whatever views Deputies have, and I feel very strongly on one side of this issue, that they will not descend to the levels that were descended to at that time. For every argument about what happened in 1982 and 1983 that can be put forward by Fine Gael we could put forward a separate set of arguments. That is an amateurish and childish way of conducting debate and it has nothing to do with the issue. I would hope in the balance of contributions from Fine Gael that they will address the issue and clarify where they stand. I believe Fine Gael are a very strong pro-life party and that there is a diversity of view within that party, as there is in Fianna Fáil. We should acknowledge that.
I believe that at the end of the day the proposition being put to the people in this referendum is probably the best and the only way we can achieve what the people sought to achieve in 1983. At least we owe it to the people to offer them the choice of re-establishing where they stand on this issue by way of referendum.
I thank Deputy Roche for sharing time. The abortion debate is a test of how we do things in the Dáil and how we address the many and complex issues we are trying to deal with in the very short space of four days. The abortion issue inevitably raises questions as to what extent, if at all, matters of this nature should be enshrined in our Consituation. What is the purpose of a Constitution? As I see it, the purpose of a Constitution is to enshrine the basic structure as to how we govern ourselves. It should deal with the courts and fundamental rights, and by and large our Constitution does this. The principle of having a written Constitution which cannot be altered by legislation but must be submitted to the people for approval is as it should be — the more we can involve the people the better.
We must ask ourselves what we in Dáil Éireann should do to address the consequences of the Supreme Court decision on the X case. It is no understatement to say that this judgment came as a bombshell to those people who supported the referendum in 1983. In spite of expert legal advice which the supporters of this Amendment obtained, it did not stand up in the Supreme Court. There is no certainty that the Government's proposed Amendment or any Amendment thereof will pass the court's scrutiny. Therefore, I conclude that matters of this nature should not be put into the Constitution. This matter has been further exacerbated by the decision of the Government to put a Protocol into the Maastricht Treaty.
The fact that the Government are insisting in railroading this extremely complex and sensitive matter through the Dáil in four days is absolutely scandalous. The fact that the Report Stage of the Bill will be taken immediatley after the Committee Stage is extremely unsatisfactory. The style of the present Government is akin to a bull rushing at a gate. We saw exactly the same phenomenon when the Taoiseach insisted on holding the Maastricht Referendum to ratify a treaty which his own Minister for Foreign Affairs admitted to me in Dáil Éireann did not exist. This referendum was conducted at a huge cost to the people.
There are people on both sides of this debate who maintain that the issues are very clear cut. I certainly do not subscribe to this simplistic attitude. This whole issue is extremely complex and quite unsuited to being dealt with in a few lines in our Constitution. I would remind the House that what the Government are trying to do in these Bills is to amend Article 40.3.3º. It can be argued that there are already adequate safeguards in our Constitution dealing with the right to life of the unborn. Surely we should now have another look at Article 40.3.3º. I do not think sufficient thought has been given to this matter.
I had hoped at the beginning of this session that we could arrive at a consensus on this issue but this has not proved possible. I do not think we tried hard enough. As far as I can see, there is consensus in the House on the travel issue and near consensus on the information issue. There is a large measure of agreement throughout the country on these two issues and I will be supporting the wording in the two relevant Bills. However, on the substantive issue there is no consensus even on how the matter should be approached. I wish the Minister had accepted Deputy John Bruton's suggestion to postpone the debate on the substantive issue. This matter should be dealt with by legislation followed by a referendum so that the people can have the last word. That is the exact opposite to what we are doing. I would argue that a strong case can be made to restore the citizens' initiative to our Constitution which was taken away from the people in 1937.
I would have to argue that any form of yes or no answer to a question as complex as this is a very blunt instrument. The Green Party have always favoured the use of a preferendum, that is, a proposition given a number of different choices rather than a referendum, which by its nature has a simple yes or no answer. Indeed, this matter was adverted to in the correspondence columns of the newspapers recently when it was suggested that people be given four different proposals upon which legislation would be based. This again would be a considerable improvement on the confrontational politics that we are engaged in this week.
Before I conclude I want to make it quite clear that it is the policy of the Green Party that when the life of the mother is threatened, then the mother must have full access to all necessary medical treatment.
To summarise my views on the way forward, this is such an important and complex issue that we just cannot afford to make a mistake by rushing at it. We cannot afford another inadequate, inaccurate constitutional Amendment and must take proper care to ensure that what we do in this House will stand the test of time and the scrutiny of the Supreme Court.
(Limerick East): There is widespread agreement on the Thirteenth and Fourteenth Amendments, so I will be addressing myself to the Twelfth Amendment. I have believed since I first gave serious consideration to the issue of abortion that the Constitution is not the best vehicle for legislation in respect of abortion. The prohibition on unlawful abortion contained in the 1861 Offences Against the Person Act prevented unlawful abortion in this country for 120 years.
The 1983 pro-life amendment, which according to the Minister for Justice, Deputy Flynn, "was designed to preserve the prohibition on unlawful abortion contained in the 1861 Act", fell at the first fence in the first legal challenge on the substantive issue in the X case earlier this year. It seems that the statutory prohibition in the 1861 Act was more effective than the constitutional prohibition introduced in 1983.
The Constitution means whatever the Supreme Court decides it means at any time, so clearly we can never be absolutely certain what any Amendment to the Constitution means when framed, debated, passed by this House and endorsed by the people. This is particularly so as the Supreme Court, especially since the sixties, has regarded the Constitution as an organic document which must be interpreted in its totality. They also expect it to be interpreted in the light of the circumstances of the times in which the interpretation is made. It must also be interpreted in accordance with the preamble to the Constitution.
In the course of his judgment in McGee v. The Attorney General, 1974, Mr. Justice Walsh stated as follows:
In this country, it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for a judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of Section 3 in Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle, as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity — not the charity which consists of giving to the deserving for that is justice, but the charity which is also called mercy. According to the Preamble, the People gave themselves the Constitution to promote the common good, with due observance to prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and experience, interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpetation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.
It is worth asking, how a Minister for Justice can give such guarantees to this House as to the certainty of how words can be interpreted when one of the principle advocates of the type of constitutional interpretation we now have, has spoken as I have quoted?
Subsequently, in the course of his judgment in the State (Healy) v. O'Donoghue in 1976 in the Irish Reports at page 374, Chief Justice O'Higgins spoke as follows:
The Preamble to the Constitution records that the People seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored and concord established with other nations, do hereby adopt, enact, and give to ourselves this Constitution.
In my view, this Preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity, which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The Preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.
That is worth repeating. Justice O'Higgins the former Chief Justice talks about interpreting the Constitution in accordance with the virtues of prudence, justice and charity which are laid out in the Preamble, but then he says that this interpretation may gradually change and develop as society changes and develops and will fall to be interpreted from time to time in accordance with the prevailing ideas. After reading that quotation it is worth asking how the present Minister for Justice can give guarantees in this House as to what any form of words inserted in the Constitution will mean, when it is up to the Supreme Court to decide in accordance with the Preamble to the Constitution in a changing society what the words mean at any time in any test case. If Deputies and members of the public would only take on board the clearly stated views of several Supreme Court judges, they would find no difficulty in explaining the dichotomy between what the people thought they were voting for in 1983 and what the judges decided in the X case almost ten years later, because that is the way constitutional interpretations are made, and that is the way they have to be made, according to these eminent jurists, to be consistent with the organic nature of the Constitution and arising from the Preamble to the Constitution itself."
Chief Justice Finlay referred with approval to those quotations and actually incorporated them in the X judgment when he made it clear that he was following the same approach. It is quite clear therefore that it is not possible to pin down the Supreme Court in advance to a particular interpretation of words in the Constitution, and to attempt to do so is futile because our Supreme Court since the late sixties has exactly the same notion of their interpreting function with regard to the Constitution as the Supreme Court in the US has, and they will interpret it as society changes in the light of prevailing circumstances against the background of the Preamble and in the light of the virtues of prudence, justice and charity. They thought it was just to lift the injunction on Miss X and they thought it was the charitable thing to do. That is why they made the decision. I put it to the Minister for Justice that it is not possible to give the kind of guarantees which the Minister gave in this House and which he gave from these Opposition benches in 1983, or to say with any certitude what way words in the Constitution may be interpreted in two years' time, in ten years' time or in thirty years' time.
As a matter of fact the Supreme Court adjudicated on Articles 40.3.3º on three separate occasions, and with respect to the honourable members of the court their judgments have not been consistent. The earlier judgments were closer to the view of those who proposed the 1983 amendment. The judgment in respect of the provision of information was nearer to the stated position in the 1983 judgment than the judgment in the X case. The underlying attitude of the same judges changed over a very short period when faced with the harrowing circumstances of the Miss X case. In accordance with the concepts of prudcence, justice and charity they lifted the injunction placed by the High Court on Miss X.
This change of position by the learned judges adds further force to the argument that those who believe that words in the Constitution will give certainty on abortion are suffering from a dangerous form of self-delusion. A constitutional amendment can set out the basic principle on which law should be founded; it takes detailed legislation to give certainty to the law.
When I was Minister for Justice in 1983, I listened to the views of many Deputies still in this House in the course of the debate on the amendment which became Article 40.3.3º of the Constitution. I recall in particular, Deputies Woods, Geoghegan-Quinn and Flynn who were the leading lights of Fianna Fáil in that debate.
Deputy Flynn expounded with absolute certainty on both constitutional law and medical practice, and gave assurances to all and sundry that neither a future Oireachtas, nor a future Supreme Court could possibly allow abortion in this jurisdiction, once the then amendment was passed. He was wrong on both counts. The Supreme Court earlier this year decided that abortion was permitted in certain circumstances, and now the Minister, Deputy Flynn, is introducing an amendment on behalf of Fianna Fáil and the Progressive Democrats which, on his own admission, will permit abortion to save a mother's life.
The Minister's assurances were so wrong in 1983 that one must regard similar assurances given by the Minister for Justice yesterday with awe and a mixture of fear and wonder. Only a man with the ego of the Minister could give the kind of assurances the Minister gave yesterday after being so wrong in 1983. It is not possible for the Minister to give such assurances. The Minister is once more proposing to put a riddle into the Constitution and the Supreme Court will answer the riddle some time in the future and the Minister has no certainty as to what the answer will be any more than he did in 1983. To put it bluntly, the form of words that has been proposed in respect of the substantive issue is ambiguous and unless the Government introduce legislation to give a statutory framework to their constitutional intentions, neither the medical profession, the mothers of Ireland nor anyone else will know where they stand.
It is a striking contradiction that the Minister for Justice will not proceed to a constitutional amendment on divorce until he has published legislation setting out the detailed grounds for his proposal. Yet he believes he should amend the Constitution in respect of abortion without publishing any legislation; and he shamelessly maintains that no such legislation will be necessary in the future, despite the explicit advice of the Attorney General that such legislation is necessary. That is an astounding contradiction compounded by the fact that it goes in the face of the Attorney General's advice.
I would like now to turn to the wording of the Twelfth Amendment. The Government's intention seems to be to enshrine in the Constitution the judgment of the Supreme Court in so far as it dealt with the circumstances in which it would be lawful to terminate the life of an unborn child where the mother's life is at real and substantial risk from causes other than an intention to commit suicide. That, I think, is a fair presentation of the Government's intention.
A judgment of the Supreme Court in a constitutional case quite clearly has a constitutional effect. In simple terms the judgment explains or amplifies a part of the Constitution and it has the same force in law as if it was actually part of the Constitution. Article 40.3.3º was ambiguous. It was not clear how the right to life of a mother and the right to life of an unborn child should be balanced when those two rights were in conflict. The judgment in the X case adjudicated on this matter and the constitutional position now is that abortion is lawful when it is necessary to save the life of the mother when there is a real and substantial risk to her life, including a risk of self destruction.
If it is the intention of the Government to maintain that position but to rule out the grounds of suicide, why does the Minister think it necessary to introduce several lines of ambiguous language into the Constitution when the Supreme Court had already adjudicated on the matter and cleared up the ambiguity? Would the Government's purpose not have been better served if their amendment simply excluded suicide as a ground for abortion and allowed the Supreme Court's interpretation of Article 40.3.3º to stand where they had adjudicated between the conflicting rights of a mother and an unborn child? By proposing the form of words now before us the Government are proposing to restore the ambiguity which the Supreme Court had taken out of the Constitution in their judgment in the X case and we will not now know what the position is until a future case comes before the Supreme Court.
I listened with interest to the reasons given by the Minister for Justice for including the phrase "as distinct from the health" in the amendment. In essence he claims that if this phrase were not included abortion would be available on broad health grounds as well as on life grounds and that this would lead inevitably to widespread abortion in Ireland. Again I do not think I am misstating his case. That is exactly his position. It is worth repeating. He claims that if the phrase "as distinct from the health" is not included abortion would be available on broad health grounds as well as on life grounds and that this would lead inevitably to widespread abortion in Ireland.
The Minister claims that he sees parallels with the Bourne v. R case in the United Kingdom in 1938 and expressed a fear that if the phrase is not included the word “life” will be interpreted as the quality of life and that this will lead to abortion on demand. I do not believe the Minister is correct in this interpretation. First of all, on parallels he sees with the Bourne case, which were commented on by other speakers tonight, it is worth pointing out that there is no written constitution in the United Kingdom. In our Constitution the unenumerated right to life of the unborn gave protection to the unborn even before Article 40.3.3º was inserted in the Constitution. It was the view expressed to me by Supreme Court judges in 1983 that the legal position, the constitutional position, was not changed by Article 40.3.3º but that simply what was an unenumerated right in Article 40, the right to life of the unborn, was made an explicit right by its insertion in the Constitution. Mr. Justice Flaherty, in his judgment on the X case, stated clearly that Article 40.3.3º would prevent abortion on demand and that any Act of this Parliament to introduce anything that came near abortion on demand would fall on constitutional grounds because of Article 40.3.3º. Therefore I do not see the parallels with the Bourne case. They do not have a written constitution in the United Kingdom and the particular law had such strong force in precedent that it led in a direction that we all know about now.
That is not the position here. I believe that the phrase in question adds nothing to the meaning of the words. If, for example, I were to say that it was the Ceann Comhairle as distinct from the Leas-Cheann Comhairle who made a decision, the phrase "as distinct from the Leas-Cheann Comhairle" would merely clarify the main statement but would add nothing to the substance. If I say it was Deputy Byrne as distinct from Deputy De Rossa who made the fine speech in the House, the phrase "as distinct from Deputy De Rossa" is only a clarifier. It certainly makes it easier to understand the substantive point in the principal statement, but it does not change the meaning of the substantive point in the principal statement. It adds nothing of substance, in my view. Likewise, the test in the amendment, without that phrase being inserted, that termination be necessary to save the life of the mother whose life is at real and substantial risk is a sufficiently rigid test to confine termination to life grounds rather than health grounds. The inclusion of the phrase — and this, to answer Deputy Roche's point, is the net point of our objection — puts the medical profession in a very difficult position. I believe it was a difficulty that was clearly understood by the people who drafted the speech of the Minister for Justice because I think it was as clear as crystal from the explanations they gave that they understood the difficulty and were worried about it. There is no absolute frontier over which one crosses from a health threatening situation to a life threatening situation. A doctor must make the best possible judgment he can in the interests of his patients, but it is naive to believe that he can apply some kind of measuring scale to say "The threat is now to health, so I cannot" and then to say "The threat is now to life, so I can". There is no yardstick, there is no ruler, there is no set of logarithm tables one can apply to say that at a precise point in the course of an illness a patient has passed from a situation where the condition is health threatening into a situation where it is life threatening. By including "as distinct from the health" in the wording the Minister establishes a false criterion for doctors and introduces the fear of litigation into what is essentially a medical decision. If we set up a false standard with no basis in reality, a doctor making a decision is on the one hand, open to litigation from the next of kin of a patient who dies, on the grounds that he did not intervene in time as the illness progressed; but on the other hand if he intervenes too soon and the life of a foetus is lost, he again faces the possibility of litigation from, say, a mother or a husband who wanted a live and well child.
Deputy Roche asked me to explain precisely what our difficulty was. I cannot do better than to give back to him what Deputy Lenihan said earlier in the House, because I think he put it very well indeed. He said that when illnesses are grave — and we have all heard the expression that somebody is gravely ill — there is a spectrum of gravity and it is not possible to say in that spectrum of gravity at what point one crosses from a health threatening situation into a life threatening situation. That was the point Deputy Lenihan made so well this afternoon and his colleagues in the Fianna Fáil Party should think about it.
The amendment which is being proposed would have wide support if the phrase "as distinct from the health" was omitted. Even if the Minister is correct, it is possible to envisage a future Supreme Court deciding that life means something more than biological life. Some jurisdictions allow abortion because the adverse economic and social circumstances of a mother justify it under their Statutes. In those circumstances abortion is allowed on grounds related to the quality of life but the adverse quality of the mother's life does not arise from ill-health and if we take the Minister at his word the only thing that he is pinning down is the question of ill-health. Other quality of life interpretations do not arise from the question of health but rather from general economic and social conditions. In other jurisdictions abortion is permissible on those grounds. It is not beyond the bounds of possibility that a future Supreme Court would interpret this phrase in that way. The phrase "as distinct from the health" does not meet this problem.
The Roe v. Wade case in the United States — this test case led to widespread abortion in that jurisdiction — did not rely on health grounds but rather on concepts of privacy of the individual and the bodily integrity of the mother. It is not too far fetched to believe that at some future date such concepts could be imported into a Supreme Court judgment which sought to unravel the ambiguous wording now being proposed for inclusion in the Constitution. The Minister should introduce a Bill to prevent widespread abortion and he should not duck his responsibilities and transfer what is properly the function of the Oireachtas to the Supreme Court.
The stated intention of the Government to introduce legislation to enshrine the totality of the Supreme Court judgment in law if their amendment is defeated is the most extraordinary aspect of the affair. The Government are opposed to abortion except in limited circumstances to save the life of the mother. Yet, the same Government, if they do not get their way, are committed to introducing legislation which, according to the Taoiseach and the Minister for Justice, will provide for abortion on demand. That is the most outrageous proposal in this process. It is an immoral and amoral position and it is spectacular in its rashness. It is also an idle threat because the Government know that they have no hope of getting that type of legislation through this House or the Seanad.
I find the position of the Progressive Democrats in this debate beyond comprehension. The right to life is the most fundamental of all human rights and the constitutional amendment on the substantive issue is founded directly on the right to life even if it qualifies that right in respect of the unborn child of a mother whose life is at real and substantial risk. On this most fundamental of issues the Progressive Democrats have two contradictory positions — they will support the amendment in the Dáil and will oppose it in the referendum. This approach surely raises expediency to the level of an art form.
I strongly support the right to life of the unborn but believe that there are limited circumstances in which that right is in conflict with the right to life of the mother and in those circumstances a doctor must be in a position to make a decision in favour of the mother. I do not believe that a constitutional amendment alone with all its ambiguity will achieve this end. Only legislation will give the certainty to the law which is necessary to protect the life of the unborn child; only legislation will give certainty to the law which is necessary to protect the life of the mother and only legislation will give protection to members of the medical profession who have to make a decision when the right to life of the mother and child are in direct conflict.
Constitutional amendments are blunt instruments and in the absence of Statute law they will not achieve what their proposers intend. The Minister should withdraw this Bill until he has published appropriate accompanying legislation.
The circumstances in which the termination of pregnancy is permissible is an inherently complex issue not susceptible to a single sentence formula. By concentrating their efforts during the past six months on an attmept to find a single magical legal sentence the Government have embarked upon a search which is doomed to failure.
The single sentence solution, compressing all the complications of the issue into just 50 words or so, simply does not exist. The experience of the 1983 amendment, if it teaches us anything, shows that we cannot depend on a single sentence solution because every single sentence solution is likely to carry within it the seeds of uncertainty, the need for further judicial interpretation and critical terms left undefined.
The real tragedy of the Government's approach is that it is unnecessary to force the electorate as this amendment does, if it goes through in its present form, to guess, guesstimate or take a chance on what the sentence will actually mean when the Supreme Court Court comes to interpret it. It is unnecessary to force the electorate, unfairly, to select between competing and conflicting legal assertions in this House as to what the actual effect or real meaning of the Government's formula will be. The very existence in this House of doubt and debate about the meaning of the various words shows that we should stop this process now and choose a different course.
Do the Government seriously think that the debate about the wording, its meaning and effect which has gone on inside and outside the House during the past 15 days or so is going to stop next week? The inescapable truth of this matter is that this debate is certain to be taken up again but this time in a court of law and the outcome of that litigation cannot be predicted with confidence by anyone, including the Minister for Justice.
The proffering of a formula involving that level of uncertainty represents a grave failure of leadership. The effect of the Bill is to offer a choice between two bad options. Neither a Yes nor a No vote will resolve this issue definitively and none of this is necessary. Instead the solution is to start with comprehensive legislation which spells out at whatever length is necessary the solution to the issue leaving nothing to guesswork or to the uncertainty of future judicial interpretation. The constitutional provision should then be founded on that detailed legislation. The Government should introduce such legislation before attempting to enact their constitutional amendment setting out the circumstances in which a termination of a pregnancy will be lawful in Ireland.
We are dealing here with matters of life and death. It does not seem to make any sense to deal exclusively with matters of that gravity in 55 words in a Constitution or in any other document. To rely solely on 55 words to encompass all the complexities of conflicting rights to life is imprudent to say the least. We should not forget that at a practical level those 55 words are the basis on which, unfortunately, patients may go to law against their doctors and even children may go to law against their parents.
Let me give a practical example of this. Let us suppose that a pregnant woman is treated for cancer by chemotherapy and that in the course of treatment her child is damaged seriously but is born alive. We could then have a situation in which the child might sue either its mother or, more likely, its mother's doctor on the claim that the chemotherapy in this circumstance was only necessary to protect the health and not necessarily to protect the life of the mother. How and on what basis would liability be decided in this case? Obviously, it would be decided on the basis of an interpretation by the court in this civil action of the precise meaning of the words that the Government now want to put into the Constitution.
I know it will be argued that such an action is highly unlikely but if one thinks about it it is not all that unlikely. Given the substantial costs involved in maintaining a child whose health has been severely damaged because of chemotherapy applied to his mother while still in the womb an action for compensatory damages is not at all unlikely.
It is not enough to say that it is a matter for the doctors to work out the legal liabilities in that situation. Doctors may have experience of making split second clinical decisions based on an understanding of their legal liabilities in regard to existing medical practice based on well established codes of ethics and case law but they are not used to and have no experience of making split second clinical decisions on the basis of an interpretation as yet uncertain of a new and totally untested constitution provision of 55 words which the Government want to insert.
This problem for doctors which, ultimately, will affect the way women are treated because uncertainty will either lead to over-treatment, postponed treatment or treatment that is not necessarily the best for the mother and her child could be avoided if we were to first enact legislation which would clarify all the procedures for determining liability in cases like this before we put any words into the Constitution. It might well emerge in the course of preparing such legislation that certain alterations in the proposed consitutional wording would remove many of the practical difficulties to which I have referred. However, if we put the words into the Constitution first before we discuss the practical legislation it will be too late to make any adjustments afterwards without having another referendum.
Let me give another example of why we should have the legislation before a referendum. This constitutional provision will create a constitutional right, in certain circumstances, to a termination of a pregnancy. There may well be, and I am sure there are, some doctors who would have a conscientious objection to performing a termination even in these limited circumstances. Given the gravity of the issues involved, this is to be expected.
The Dáil, when in 1979 it was enacting legislation to legalise contraception, which does not raise ethical issues of the same gravity, inserted a clause to cater for such conscientious objectors. A similar clause is needed in this case to cater for conscientious objectors who may not wish to provide a service for which this provision will create a constitutional right. Yet there is no such clause in the Constitution and the Taoiseach says we need no legislation to provide for it. In my view we should first have the legislation to deal with conscientious objectors. In discussing that legislation we would throw light on what the appropriate words should be that would ultimately be inserted in the Constitution. In other words, we should put the horse before the cart. Any difficult issues that came up in the course of discussion of the question of conscientious objectors could then be taken into account in the choice of the precise words to be used in the Constitution.
There is another very telling argument for having legislation first. This is to be found in the excellent judgment of the late Mr. Justice Niall McCarthy in the X case. He was referring to the decision of Dáil Éireann to allow the original 1983 amendment to be a full and final statement of the legal position in regard to abortion here, without any supplementary legislation to explain or underpin its real meaning. He said: "In the context of the eight years that have passed since the amendment was adopted the failure of the Legislature to enact the appropriate legislation is no longer just unfortunate, it is inexcusable". There has never been as trenchant a condemnation of the Houses of the Oireachtas from the courts as that uttered by Mr. Justice Niall McCarthy on that occasion. Yet it seems that we will probably have to wait another eight years for another Supreme Court judge to make exactly the same condemnation of our failure to enact legislation in regard to the interpretation and implementation of this amendment.
Mr. Justice McCarthy went on to ask the question in regard to the statement in the 1983 amendment that the State by its laws would, as far as practicable, vindicate the right to life of the unborn, as to how in practice the State would do this. He drew the conclusion that if the State was in fact to vindicate the right to life of the unborn, it had no option but to do so by positive legislation. He said:
Legislation may be both negative and positive. Negative in prohibiting abortion, absolutely, or at a given time or without meeting stringent tests.
Positive by requiring positive action. The State may fulfil its positive role by providing the necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman.
Mr. Justice McCarthy thus made it abundantly clear that it was his view that the State had two obligations. Certainly it had an obligation to prohibit abortion, but it also had an obligation to prevent the cause of abortion arising by providing the necessary help for women who became pregnant. He made it abundantly clear that he believed that this positive role was one that should be met by legislation. The Government plan no such legislation. This is a very important matter that should be addressed by legislation before we amend the Constitution.
There is yet another area which needs to be dealt with by legislation before we consider the constitutional amendment proposed by the Government. The Government's amendment says that termination of pregnancy is lawful in stated circumstances, but it does not say how late in the pregnancy such termination is permissible. It seems that this is a matter that should be addressed by legislation before we enact any such constitutional amendment.
Let me refer to yet another reason for having legislation first. The Government have chosen, in my view mistakenly, to use the words "life, as distinct from health" in the wording they are putting forward. Almost all the medical people I have spoken to regard the addition of the words "as distinct from the health" as adding nothing to either the meaning or the clarity of the remaining wording in the amendment. It is quite clear from the remaining wording that it shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life of the mother. The remaining words have a clear, simple, meaning regardless of whether we add the words "as distinct from the health" as well.
I have found nobody in either medical or legal circles who agrees with the truly amazing and scaremongering assertion of the Minister for Justice that if the words "as distinct from the health" are omitted, this might eventually lead to abortion on demand. The only argument the Minister advanced for this assertion was by reference to the Bourne case in England in 1938. I submit that this is an argument that has no foundation. The Bourne case was decided in a country where there is no written constitution, and where there is no constitutional guarantee of any kind of the right to life of the unborn. To suggest that the Irish Supreme Court would make an interpretation along the lines of the Bourne case runs counter to the entire trend of constitutional interpretation in this State. In any event, if the Minister cared to read the Bourne judgment carefully he would find that the test applied in that case was not one that concerned health grounds alone. Mr. Justice McNaughton said in his judgment that the question that had to be decided was whether the jury was satisfied that the termination was performed in good faith for the purposes of preserving the life of the girl — I emphasise that Mr. Justice McNaughton used the word "life", not the word "health".
In any event if the Minister has doubts about the practical interpretation of the amendment in the Constitution without the words "as distinct from the health", surely the sensible thing for him to do would be to introduce legislation first, setting out in detail what shall be the criteria used and how these will be applied in practice, and have them approved in the House before enacting a constitutional provision. The doubt the Minister was trying to sow as to what would happen if these words were left out is in itself an argument for having legislation first, to clear up doubts of that kind. By putting the words "as distinct from the health" into the Constitution the Minister is creating an entirely needless and indeterminable area of legal doubt which will cotinue for years.
Furthermore, the Constitution is not just a legal document, it is a document for our people. A reference of this kind which seems to place the health of women in a subordinate position, quite unnecessarily in my view, means that many women will feel that the Constitution does not speak for them. That undermines the respect for the Constitution.
I would like to elborate on the doubt that is being created. Let us assume that a medical team is involved in the performance of an operation on a pregnant woman and one member of the team feels that the woman's condition is life-threatening but another feels that it is only health-threatening. Let us assume that the member of the medical team who feels it is health-threatening discusses it casually with a third party and this third party feels it is his or her duty to report this dilemma to the Attorney General. Will we have a situation where the Attorney General will feel obliged to seek an injunction on the grounds that the courts — not the medical team — should determine whether a condition is "health threatening" or "life threatening"?
I interrupt the Deputy to inform him that three minutes remains of the time available to him.
I will hardly finish my speech in that time.
If we had legislation first, the procedures for deciding such cases of conflict could be worked out in detail in advance. The area of doubt and argument could be greatly reduced. The likelihood of recourse to the courts could be reduced or eliminated.
Let me advance a further argument for having legislation first. Ireland is a signatory to the European Convention on Human Rights. It does not matter what is in our Constitution, the European Court of Human Rights can overturn it. The European Court of Human Rights takes the view that the fundamental rights and freedoms contained in the convention are superior to the written Constitution of any signatory State. If the European Court of European Rights decides that a provision in the Constitution of a signatory State is repugnant to the Convention, any citizen of that State who feels that their rights have been infringed by it, can sue their Government to have their rights vindicated, and will succeed in that action.
I believe that it is much less likely that Ireland's law on this subject could be successfully challenged in the European Court of Human Rights if our law is set out in detail in legislation, not solely in the Constitution. If we want to have a law in this country that endures, and is not set aside in Europe, then we should have legislation first to underpin our ultimate constitutional provision and not rely solely on it.
Having said all this, I do not go along with those who argue that the right to life of the unborn should not be guaranteed in the Constitution. Whether we like it or not, our Constitution is one that guarantees all sorts of rights to all sorts of people. For example, our Constitution guarantees a right to the Government to absolute confidentiality of their proceedings, a bizarre concept — but one which apparently is founded on a particular interpretation of our Constitution. Our Constitution has also been the basis upon which our tax law as between spouses has been changed. These are all very important matters, but so also is the right to life of an unborn child. If tax law and Cabinet confidentiality is dealt with in the Constitution, then I cannot see why, after proper preparation, the other should not also be dealt with in the Constitution.
However, if we are to provide constitutional rights for the unborn, it is my contention that we should do so on the basis of proper preparation based on having detailed legislation first.
We also have a practical situation that arises in regard to the present issue. In the X case, the Supreme Court decided that there was a right to abortion on the basis of intention to commit suicide. Admittedly, it decided this in a very extreme case of a 14 year old who had been raped, but the general principle is one that could be extended in subsequent case law, to encompass other less traumatic circumstances. Given that the Supreme Court made that decision on the basis of an interpretation of the existing Constitution, it seems to me that it is not possible to alter that interpretation, other than by an Amendment to the Constitution itself. Any such Amendment to the Constitution should be carefully prepared on the basis of legislation that has first been debated, and not made solely by insertion of a brief phrase of six words inserted in the Constitution, without any accompanying legislation.
It is my strong view that allowing suicide as a general ground for abortion would lead gradually to fairly widespread abortion. Some believe that one can avoid this by legislating, within the Supreme Court decision, to limit the suicide exception so that it will only apply to very extreme cases. While this may be the intention of the framers of such legislation, it is not necessarily what would turn out in practice when such legislation had been in force for a few years. Presumably, any such legislation introduced would provide that psychiatrists and/or psychologists would have to verify that the suicidal intention was genuine. The only psychiatrist I had the opportunity to consult expressed the view that a psychiatrist would have immense difficulty in certifying in such a case. It is quite difficult to envisage the type of evidence that could be produced to justify denial of a claim that a person was suicidal. If a particular psychiatrist decided to take a risk, and certify that a person was not suicidal, and if in one case out of a 100 their judgment proved incorrect, pressure on them would be quite considerable.
Doctor Paul O'Mahony argued in The Irish Times today:
The ethics of professional practice would dictate that one would always err on the side of caution, finding that the woman was at real risk of suicide, even when the underlying evidence could not fully support this...The role envisaged for psychiatrists and psychologists if the amendment is rejected is, then inherently conflicted. It both invests them with powers of diagnosis and assessment that they do not have, and places an intolerable burden of responsibility on their shoulders.
I know that other psychiatrists have taken a different view. I have read a study by Professor Anthony Clare and Dr. Tyrrell on this subject. They cite a study undertaken at the University of Rochester in New York State during the period 1963-69 when, of 108 women referred to for psychiatric evaluation for abortion, 60 were refused.
I have no doubt that this evidence is correct but I believe that the psychiatric evaluation in this case did not relate to a direct threat of suicide, but to a much less fraught decision in regard to general mental health. The same pressure to err on the side of caution, in the words of Dr. O'Mahony, would not have applied in that case, as it would if one was judging suicidal intention.
There are broad ethical questions to be considered about the nature of a decision to commit suicide, and the degree of responsibility involved in such a decision. It seems there is divergence of opinion on this subject and I recognise that there are others who do not agree with my view on it. This divergence underlines yet again the need to have legislation first, before we attempt a constitutional amendment. I am confident that the discussion of the legislation would convince people that there is a need for a constitutional amendment to alter that aspect of the Supreme Court decision. I am confident that such a constitutional amendment would be introduced with much greater ease, sense of assurance and mutual tolerance if it had followed a proper debate on legislation than if it is rushed through in six words as the Government wish to do today.
The vast majority of people will not have an opportunity to fully research and assess the complexities of the issue before us. Many are dependent on a clear debate to assist them with their comprehension of the issue. I am concerned that, in many respects, there has not been clarity of debate; we have a duty to try to give that to the people because it is a very complex issue, as we are all aware. It is unfortunate and unfair to attempt — as some speakers from the Opposition have — to enter the realms of scaremongering. I am surprised at some of the sentiments expressed and the issues raised because the debate is very important and relates to people's concerns and worries. People do not need scaremongering tactics or the Opposition to approach this debate as just another discussion and decide to be negative.
They made the same points in 1983.
I have been very surprised at some of the things I heard today. For example, Deputy Owen, who I know has sincerely and deeply felt convictions about these amendments — which I respect — raised unacceptable issues. She accused Fianna Fáil and their representatives of deliberately seeking to undermine the rights of Irish women and of knowingly seeking to endanger their health. She also said that we were an unscrupulous party who have a lack of respect for Irish people and that we seemed to be engaged in a childish game. We cannot accept that. As a member of Fianna Fáil, a supporter of the Government and a woman, I could not accept the kind of allegations flung across the Floor of the House. I am disappointed because I thought we would have a fair and honest debate, which we owe to the people. Some speakers were not fair or balanced in their remarks. I reject the allegations, particularly suggestions that I, as a Fianna Fáil Deputy, would be engaged in trying to undermine my own rights.
I commend the Government for the effort made initially to try to keep the debate on a non-partisan level. Unfortunately, these efforts seem to have come to nought. It is regrettable that the Opposition resorted to the tactics which they used on this issue. Such tactics would be reasonable in relation to other issues — it is reasonable to attack the Government, that is what Opposition is about — but it was wrong in regard to the issue under debate. The Government were attacked in regard to their good faith and integrity, which did not do a service to the people. Interestingly, when I speak to people in my constituency I find that they want clarity in the wording and as regards what they will specifically be voting for on 3 December. They do not need any additional confusion, they need clarity.
Deputy John Bruton was anxious that legislation should be enacted before a referendum. I am opposed to that. I am very pleased that it is being referred to the people, particularly on the substantive issue. I believe that the wording presented in the Twelfth Amendment to the Constitution Bill is the best wording available. If there were better wording available I certainly would be one of the Members on this side of the House most anxious to examine all available wording in relation to the issue before us. I am very strongly in support of the Government's decision to refer this issue to the people, particularly in relation to the substantive issue.
It has been suggested that abortion is too divisive a topic to be suitable for a referendum and that only by legislation could the issue be dealt with reasonably. I unequivocally believe that this is one of those fundamental issues on which not only do we have a duty to consult the people but also the people have the right to be consulted. Further, I point out that abortion is no less divisive an issue in America or in Germany as a result of the Legislature and the Judiciary in these countries making all of their laws in relation to abortion. If we are to live up to the principle that the people are sovereign and have the right to be consulted on determining the basic laws of this State we must refer this issue, above all issues, to the people and I am glad that we are doing so.
I believe that it is right to reaffirm the principle that unborn children should be afforded definite protection and that abortion on demand is wrong. It has been an experience of other countries that the original intent of legislation has been distorted, opening the door to abortion on demand.
I also believe that every woman should be guaranteed that she can receive in Ireland whatever treatment is necessary to resolve life-threatening medical conditions. A large part of the debate in the House and in the country as a whole has focussed on the phrase that is meant to address that aspect, the phrase "as distinct from the health of." I recognise the way in which that phrase could be thought of as being very bald. Indeed, when initially giving consideration to the wording myself, I felt that the phrase was very bald. However, to date I have heard no satisfactory alternative that would ensure that abortion on demand could not come into Ireland. That is why the phrase is there.
Having studied closely the various opinions advanced on the amendment, I am satisfied that should I become pregnant or should I develop a medical condition that posed a risk to my life, I would not be denied any necessary treatment because of the words contained in this amendment — and that is a very important feature for women. There should be no attempt to confuse that issue. The intent in that connection is very clear. In essence, as I understand it, the Government wording endeavours to close the door to abortion on demand in Ireland while ensuring that all treatments necessary to save the life of the mother will be allowed.
On that basis, I support the referral of the proposed amendment to the people and I hope that they will vote for it. Further, I hope that every Member of the House will endeavour to make sure that the debate between now and polling day will not become marred in vitriolic, simplistic or partisan argument because the issue is much too serious for that.
A Cheann Comhairle, I hope you will forgive me but I should have asked at the beginning of my contribution whether it would be in order for me to share time with my colleague, Deputy Coughlan.
That is in order. Provision is made for that purpose.
In the past day or two we have heard a great deal of legal terminology. I suppose that is very important because we here are a legislative forum, but I cannot help feeling that we can lose sight of individual people in a fog of legal terminology. The constitional amendments before the House ultimately affect individual people.
Individual women will be affected at a particularly vulnerable and difficult time in their lives.
I am very much in touch with the people of Donegal. It is my business to be in touch with them and to listen to what they have to say. In the past months I have been hearing a very clear message — the people of Donegal want a referendum on this issue. I do not think that the people of Donegal are any aberration either, many people in many parts of the country want a referendum. I believe that it is not just the people who are taking a narrow pro-life stance who want an opportunity to voice their opinion on this issue. It is my belief that the bulk of people do not want abortion in this country and that any measure introduced by any Government that looked as if it would introduce abortion to this country would cause the people grave concern. This means that the public do not want left in place the present position, whereby Ireland has one of the most liberal abortion regimes in Europe. Not only that, there is also the potential of expansion to include increasingly wider grounds, especially if some of the Members of the Opposition parties ever got into power.
My constituents, therefore, want the Government to do something about this scenario. They want an approach that is effective and humane and that clearly indicates respect for women and a concern for women. Outside the House people are happy that Fianna Fáil are striking a compassionate balance between a position in which we have or could have a broad-based abortion regime and a position in which only the most rigid absolutist moral stance was enshrined in the Constitution. The Fianna Fáil amendment presents the people of Ireland with an approach that is humane, compassionate and protective of women but is also protective of the values of the society in which we live.
Before moving on to the substantive issue, I should like to speak to the amendment in relation to travel. For many of us the memories of 1983, although mentioned often in the House — and even just a few minutes ago — are not as vivid as they are for others. However, for all of us in the House and outside it, we never want a repeat of the memories of last spring, when we found this christian, humane country branded internationally as an island which imprisoned its women. We made headlines throughout the world because we were denying a fundamental human right to one of our young citizens, the right to travel. I am happy that the Thirteenth Amendment to the Constitution should and will be passed by the Irish people, because none of us wishes to restrict the free movement of people within or outside our country.
As far as the right to information is concerned, as the Minister pointed out to the House earlier, there is a case before the European Court of Human Rights at present and the decision of the court will be before us in a number of weeks. However, that decision should not affect the amendment, in relation to the provision of information, that the Government are putting before the people on 3 December. That amendment would enshrine in the Constitution the right to receive and to give information, subject to conditions laid down by law. Directive counselling would not be allowed, whereas non-directive counselling would be allowed. Inevitably, it will be very difficult to draw absolutely clear guidelines between directive and non-directive counselling but certainly the intention of the amendment is to rule out systematic guidance, advice and, ultimately, abortion referral.
In this country we have a wonderful tradition of committed medical care, with the skills and the knowledge to ensure that that care grows in sophistication with every passing year. Quite frankly, however, it is dangerous to assume that current medical practice in every single part of Ireland, in every single hospital, reassures women in circumstances in which they have a concern about a risk to their lives that every medical procedure would be taken in their interests and at a time that would most protect their lives. I know that the amendment before us will ensure that women have those absolute rights.
There has been much comment inside and outside the House that many of those speaking on this issue are men. That is a very fair point. Most of those talking on the issue in the House have been men and there has also been an age element. It is my generation of Irish women who will be most affected by the passage of this amendment. It is my generation who will face the choices, the terrors, the hopes and the challenges. The women of my generation have the right to believe that their lives are valued and that that value is expressed in the Constitution in a clear and unequivocal way. For me personally I want that protection which will be provided by the amendment. I want the entitlement to full and proper treatment which this amendment gives me. I want the freedom to travel and to have access to whatever information I want. As a citizen of this country, I have the right to all of those things. I have the right to something else also; I have the right to know that we expressly protect the right to life of the unborn child. I know that the amendment in no way diminishes the protection afforded the unborn child by our Constitution. All of that is very clear because the Government have provided wording and an unambiguous public interpretation of that wording which can provide for all of those rights.
In the past two days the Opposition have engaged in cheap shots on a life and death issue. They have called for the weirdest assortment of changes, postponements and tinkerings because they could not make up their own minds. Anyone who reads the contributions of the last day can be in no doubt that we have a national Parliament where the Government are prepared to take a stand to be honest with the people, to deal in a straightforward way with a hugely sensitive issue and not to indulge in useless point scoring. Anyone who reads the contributions of the last day can also be in no doubt that we have an Opposition short on ideas, short on contributions and very short on vision, but with an infinite supply of vicious and emotive one-liners. Deputy Bruton spoke about single sentence solutions. I would not like to be waiting for him to come up with a single sentence solution. It is the same Members of the Opposition who are saying we should accomplish this task by legislation. You have got to be kidding — subjecting ourselves and our constituents to any more of this spectacle of people running away as fast as their little legs can carry them from any solution that addresses the substantive issue with courage and conviction. The people will decide on 3 December. I am confident that, in the interests of my own and future generations of women and in the interests of generations of children yet to be born, they will vote for the proposed wording.
The Deputy has done herself no credit tonight.
Deputy J. Mitchell rose.
I am calling Deputy Eric Byrne. The Government side are entitled to 45 minutes, but they agreed to share their time with Deputy Byrne, something which has been happening all day.
I thank my Fianna Fáil colleagues for allowing me ten minutes of their time. Unfortunately, because of the lack of time, I must condense a 45 minute speech into ten minutes.
Sadly, even to discuss the question of the termination of pregnancies, is for many Irish women today a most difficult and painful task. There is still a sizeable minority of people who, through shame, embarrassment or ignorance, find sex and sexual matters distasteful to talk about, let alone to address in an unemotional and clearheaded manner. We are a society which is still largely a victim of a religious and of a Victorian ethos which viewed sex as something dirty. We are a society struggling to emerge into the real world of the 20th century, a world which many find far from perfect and far removed from the ideals and standards which many of us have tried to inculcate in others and in our own lifestyle. For many our society seems to be missing the essential core qualities such as respect, love, neighbourliness, understanding and forgiveness. Sadly, there are still a sizeable minority who would wish reproductive organs were confined to animals and that we did not possess them. If only it were true that children could be found, as in olden days, under cabbage heads, that they could really be delivered by the stork into a family, and that all births could be the result of a union other than by intercourse, then we would not have to address all these legal and medical complications which must be addressed when dealing with the sad realities of life in 1992 — for example, the sad reality of 5,000 of our citizens going to England to terminate their pregnancies.
As legislators we cannot put our heads in the sand and ignore the reality of life in Ireland in the nineties. Legislators cannot be divorced from the real world. Legislators must make laws in the light of their own experiences and by recognising the complex nature of society as it is today. We must legislate not only for the few votes — that seems to be the Fianna Fáil approach to these referenda — or for the majority, but we must legislate for minorities or practices which we ourselves may not wish to avail of. We cannot and should not be selfish.
If democracy means anything it must mean that as a society we must be egalitarian enough to live alongside and among people whose religious and moral standards and sexual lifestyles are different from our own. I cannot help but think how this charade in the House is being viewed by the religious minorities, not only in the Republic but particularly — in the light of the talks taking place to bring about a peaceful solution to the murderous conflict in Northern Ireland — by the Protestant majority there. On the one hand we have the Government willing to trade away Articles 2 and 3 of the Constitution in order to appease and bring about a peaceful solution to the Northern Ireland problem. On the other hand, we have in the proposed wording to the amendment to our Constitution yet another slap in the face to the religious minorities, such as the Methodists.
On 28 May 1992 I read into the Official Report a quotation from The Irish Times in which the Methodist viewpoint on abortion was outlined. Needless to say the Protestant community have already outlined their extremely strong objections to our using the Constitution as a means of addressing this delicate issue. I should like to take this opportunity to read into the record again the stated viewpoint of the Methodist Church. An article in The Irish Times of 18 March 1992 in the Methodist notes entitled “Church supports limited abortion” states that termination of pregnancy is permissible:
1. When the mother's life is at risk. Our first concern will be for the mother and her first concern may be one of commitment through her own continuing life to her family responsibilities...
2. Where there is risk of grave injury to the physical and mental health of the mother, especially if she has family responsibilities....
3. In cases of rape or incest....
4. In cases of gross abnormality of the foetus e.g. where reliable investigation [by amnios synthesis testing] indicates that the foetus would be born without a brain or would not long survive birth. In cases of lesser abnormality each decision should be made with extreme caution.
Whatever about European Union, how can we address the problem and explain ourselves to one million Protestants living on the other side of the Border in view of the manner in which the Government have abused the Constitution in this House? How can we assure them that the ethos would be protected if there was a unitary State? I ask the Minister directly to rise to the challenge and show them and the rest of us that he does not believe in the extension of the confessional state into Northern Ireland.
Deputies from all sides have privately congratulated Members of Democratic Left for their "sincerity" and "political bravery". Some of the compliments may well be genuine, or some may be quite cynical. However, we should now have addressed the issue and, depending on what answers were arrived at, should have decided our position on the termination of pregnancies. The acid test is how would we as parents respond if our daughter of 14 years of age had been raped, was clearly distraught because of a resulting pregnancy and had threatened suicide — and this has been proven by psychologists to be potentially possible. Women who have been victims of rape or incest and pregnant women whose health is endangered cannot become the innocent victims of a cowardly Government and be sacrificed for political expediency.
Comparisons have been drawn between Great Britain and Ireland by various Ministers. There is the argument that if we were to protect the lives of those who were about to commit suicide and allow them to terminate a pregnancy, we would open the floodgates, as has happened in Great Britain. Since we are all members of the European Community, I would ask the Minister whether the Government see the English formula for termination of pregnancy as the only formula that exists in the world. There are others in Spain and Italy — two Catholic countries — as well as in Portugal, France and Germany which are not equated with the practice that exist in Great Britain. How is it that Catholics, Protestants and Bishops of both persuasions in Northern Ireland do not seem to have any difficulty with the fact that 800 abortions were carried out there last year under Northern Ireland law?
I wish to say in the very limited time at my disposal——
Sorry, Deputy, you have disposed of your time.
Regardless of the time and energy this House has devoted to this issue, these amendments will fall flat on their face as soon as the first case is brought before the Supreme Court.
I must now call the Minister.
Doctors will challenge what the Government are forcing on the Irish people.
Over the past few days we have had a very detailed and wide ranging debate on the Second Stage of these three Bills to amend the Constitution. I have followed the debate very closely and I want now to respond as fully as I can in the time available to as many as possible of the main points that were raised during the debate. I hope that individual Deputies will bear with me if I do not cover some points they have mentioned during the debate. In a debate as comprehensive as this has been on a topic as important as this, it is simply not possible at this point to respond to every single point that has been raised during the debate. There will, of course, be an opportunity on Committee Stage to go into some detail on many of the issues involved.
Two basic and central themes have run through the whole debate — concern to protect the lives and health of pregnant women and concern to protect the right to life of the unborn child. Widely divergent views have been expressed on the issues raised by the Bills, ranging from those who regard the Government's proposals on the substantive issue as not being restrictive enough and who oppose information being made available on abortion services abroad, to those who would in effect like to see abortion on demand available in the State and directive as well as non-directive counselling.
Who are they?
Who made that case?
The Minister must have heard that at one of his party's parliamentary meetings.
The more I have listened to the debate the more I have been confirmed in my conviction that the approach taken by the Government in this whole matter is the correct one and strikes the proper balance between the need to protect the lives and health of pregnant women and the need to protect the life of the unborn.
The Minister is demeaning the debate which has taken place by making silly statements like that.
I will now deal with the more important points that have been raised in relation to each of the Bills individually, beginning with the Twelfth Amendment of the Constitution Bill which deals with the substantive right to life issue. Three proposed amendments to the motion for a second reading of this Bill have been put down. Two of them, one in the name of Deputy Brendan Howlin and the other in the names of the Deputies of the Democratic Left, propose that the House should decline to give a Second Reading to the Bill. The third proposed amendment, in the name of Deputy John Bruton, proposes that the Bill should be given a Second Reading only after the Dáil has first discussed, up to and including Committee State, legislation designed to elaborate on the practical implementation of the provision of this Bill.
Deputy Bruton's proposal that a Second Reading of the Twelfth Amendment of the Constitution Bill should follow the publication and debate of legislation to supplement the amendment is not acceptable to the Government.
Since the amendment would, in effect, negative the suicide aspect of the Supreme Court's test for a termination of pregnancy, any legislation to supplement the amendment would have to take that chance in the law into account. It would be objectionable, from a legal and more general point of view, to put legislation through the House, albeit short of completion of Final Stage, which sought to anticipate the outcome of a decision by the people in a referendum on the subject matter of that legislation. In my opening contribution on this debate I made clear the Government's position on legislation to supplement the amendment. If the Government are persuaded of the need for that legislation they will consider the matter further. We are not, however, at the present time convinced about the need for such legislation.
Two reasons are given for Deputy Howlin's proposed amendment. The first is that the Bill poses dangers to the life and other fundamental rights of Irish women. In my speech opening this debate I went to considerable lengths to refute this suggestion and to spell out why the proposed amendment to the Constitution in fact affords full protection to the life and health of a pregnant woman. A number of other speakers on this side of the House, including the Minister for Health, have also pointed out the way in which the proposed amendment affords such protection.
Spokespersons for the Labour Party in this debate have tried to pick holes in the wording used in the amendment. They have objected to the word "necessary" on the basis that it implies that terminations would take place only where they are absolutely unavoidable and that in practice this could lead to situations where necessary terminations are delayed until a medical emergency has occurred. This objection has been raised despite the fact that the Supreme Court judgment itself uses the expression "which can only be avoided by such termination." They have referred to the "innate offensiveness" of the phrase "as distinct from the health" and have claimed the use of that term could also rule out operations that would be perfectly legal now if they were necessary to save the health as distinct from the life of a woman. While I can well appreciate the strength of feeling on this matter, many of the comments made suggesting that the inclusion of the phrase could have adverse and unintended effects are without foundation.
It has been suggested that a line cannot be unambiguously drawn between life and health and that this will give rise to difficulties. But the Supreme Court has already drawn that line and had no difficulty in doing so. The essence of the Supreme Court judgment is that such a line must be drawn on the proper interpretation of Article 40.3.3º because that Article on its true interpretation will allow the right to life of the unborn to be superseded only where that is necessary to save the life of the mother in the sense that otherwise she will die. The Twelfth Amendment would not make any change in the Supreme Court's test on this point except to establish that test as something which could not be changed at any time in the future without the consent of the Irish people.
Deputy Shatter is of the view apparently that the test laid down by the Supreme Court cannot be read as including the words "as distinct from the health." The fact is that all five of the members of the Supreme Court spoke specifically in terms of the life of the mother and in no instance was health unrelated to a risk to life contemplated as a ground. The distinction between life and health was included in the general test laid down by the Chief Justice and it is clear that that distinction was accepted by the other judges and was inherent in what they had to say. The quotations from the judgments referred to by Deputy Shatter in fact support what I am saying.
It seems to me that a test of whether action is necessary to save the life of the mother is straightforward and should not give rise to difficulty in practice. This test has existed explicitly since the decision was given in the X case and, prior to publication of the Twelfth Amendment of the Constitution Bill, I heard no suggestions about any possible difficulties in the operation of that test.
I have dealt in my opening remarks with suggestions that doctors may feel that in some way the inclusion of the phrase in the amendment will inhibit them from acting until there is a degree of certainty in relation to the existence of a risk to life which would be wholly impracticable in medical practice which can only proceed on the basis of probability. I have explained that the Supreme Court decision requires only that the existence of a real and substantial risk to life be established on the balance of probabilities and that there is nothing in the amendment which would change that.
There have been suggestions that the amendment will render unlawful medical treatment for mothers where that treatment is for the benefit of their health as opposed to saving their lives. I wish again to make the point that the amendment is not changing the law in this respect — it adopts the existing law as set out by the Supreme Court. So far as I know, nobody has ever suggested that the Supreme Court decision has given rise to the consequences that it is now claimed would flow from the amendment.
My understanding of current medical practice is that medical treatment for a health condition which is not life-threatening is not permitted if the foreseen result of that treatment is the death of the foetus but that medical treatment is permitted where the life of the mother is at risk and the loss of the life of the foetus from such treatment is foreseen. It may, of course, also occasionally happen that a drug or other therapy given for some condition causes an entirely unforeseen adverse response and leads to the loss of life of the foetus. I am advised that the wording proposed could not be held to imply a breach of the law in circumstances where the life of the foetus is lost as an unforeseen and unintended consequence of treatment carried out in good faith.
Deputy Spring made the point that the phrase "necessary to save the life" means that the risk to life must be imminent, before action to terminate the pregnancy would be permitted. He mentioned cases of cardiac conditions or treatment involving chemotherapy in the early stages of pregnancy.
On a point of order, the text circulated to the press says that Deputy Owen and I made this point. We did not do so. The Minister has changed the text, but the original text has been issued to the press. I ask the Minister to withdraw the allegation in that text that Deputy Owen and I made that statement.
It says in the script that Deputy FitzGerald and Deputy Owen made the point that the phrase "necessary to save the life" means that the risk to life must be imminent.
I am reading from the script before me.
The Minister is hiding behind his script.
We are reading from the script circulated to the press.
The script circulated to the press states that Deputy FitzGerald and Deputy Owen made the point that the phrase "necessary to save the life" means that the risk to life must be imminent. We said nothing of the kind. That script has been circulated.
More inventive editing.
Will the Minister withdraw that allegation in the House?
I would refer Deputies to what is stated at the start of the script, "check against delivery". I am delivering the script now.
This script has been issued to the press and I ask the Minister to withdraw that allegation in the script.
The Minister is replying and the Chair is concerned with what he is saying and is not privy to anything else. I ask the Deputies not to interrupt the Minister.
What script is the Minister reading from?
False statements have been issued to the press by the Minister which he is hiding by changing the version in the House.
This script was given on the basis of being checked against delivery. What I say is the accurate matter. Deputy Spring made the point that the phrase "necessary to save the life" means that the risk to life must be imminent before action to terminate the pregnancy is taken.
Has the Minister informed the press that this is an incorrect statement?
He mentioned cases of cardiac conditions or treatment involving chemotherapy in the early stages of pregnancy.
A typical dishonest approach.
I dealt with this matter in my opening remarks. I pointed out that the test enuncicated by the Supreme Court does not require that the risk of life must be immediate — as I mentioned, the court specifically rejected that proposition — and neither does the wording of the proposed amendment require that the risk of life should be immediate. I mentioned that I am advised that the phrase "necessary to save the life" means that a pregnancy could be terminated if the doctors were able to form the view that even after childbirth and recovery of the mother therefrom, other treatments for whatever condition she was suffering from would be ineffective to protect her life.
For fear there would be any misunderstanding in so far as this is concerned, what I am saying is the accurate version and if the press got something different they should correct it according to what I am delivering here.
May I ask the Minister if he proposes to address the point that Deputy Owen and I made.
Deputy FitzGerald is completely out of order and one would imagine that Deputy of his experience would appreciate that. The Minister is replying and should not be interrupted.
He did not reply to the points made.
There have been criticisms of the proposed amendment on the basis that it does not provide for termination of pregnancy in cases of rape or incest. It has also been suggested that termination should be allowed where the foetus is damaged or deformed or where an anencephalic foetus has been identified in the womb. There have also been complaints that the amendment does not deal with such matters as the morning after pill, IUDs and so on.
Can I emphasise again the extremely specific nature of the amendment being proposed? What we are doing is adopting the test for termination of pregnancy where there is a real and substantial risk to the life of the mother, as set out by the Supreme Court with the difference only that we are not providing that a risk of self destruction should be a ground for termination of pregnancy.
Why is that?
I stressed in my opening remarks that we are not proposing an abortion amendment and that we are not in the business of opening the door to an abortion regime.
What is a termination?
Far from providing more grounds on which a pregnancy can be terminated we are, in fact, restricting the grounds that have existed in our law since the Supreme Court gave its decision in the X case.
While I fully appreciate the depth and genuineness of feelings aroused by the matters I have mentioned — particularly rape and incest — I also appreciate and must take account of the deep feeling against abortion that exists throughout this country and which was given explicit expression some years ago when a majority of the people voted to include Article 40.3.3º in our Constitution. All of these matters which I have just mentioned are outside the scope of the very specific measure we are proposing. However strongly some people may feel about these matters, I doubt very much that there would be widespread support for the changes suggested which would be seen, I have no doubt, as paving the way for widescale abortions. The amendment proposed does not deal with these issues. The position under law in relation to them will be the same after the amendment is passed as it is today.
The suggestion has been made that the proper way to approach the problems we are dealing with is simply to repeal Article 40.3.3º. Some people who advocate that course see Article 40.3.3º as the factor that has given rise to the controversial and troubling questions that now concern us. I do not think we need spend much time on this suggestion. Is it being seriously suggested by any Deputy that the people of this country who voted by a large majority to include Article 40.3.3º in the Constitution would be likely now, nine years later, to reverse their view and vote to remove Article 40.3.3º from the Constitution? I do not believe such a prospect is likely and because of that I regard this suggestion as academic.
The substance of Deputy Shatter's contribution seemed to amount to little more than a plea for more time to consider the issues involved. His case would have been better made had he not decided to use a substantial amount of the time available to him to make a series of baseless allegations about the Government's approach to these complex matters.
In my opening contribution to the debate I stated that the Government recognise the genuineness and the depth of people's feelings and concerns about this whole subject — whether from a pro-life, a pro-choice or other point of view. I also placed on the record of the House the Government's appreciation of the willingness of the other parties to endeavour to achieve a consensus on how best to approach this matter.
Given these remarks and the nature of the difficult issues we are all here trying to deal with, it is a pity that Deputy Shatter, having given a highly selective account of the debate on the 1983 amendment——
They were accurate quotations from the Minister.
——which managed to ignore the fact that his party were part of a Government which brought the amendment before this House, went on to suggest that it was clear from my speech that the Fianna Fáil Party were seeking to label Members of this House as abortionist and anti-life.
I regret that this note of rancour was struck by Deputy Shatter and I had hoped that this type of approach — which is quite unnecessary — could be avoided.
Did the Minister tell that to his colleague, the Minister for Tourism, Transport and Communications?
It is important for all Members to respect the various genuinely held views on this matter and to avoid gratuitous attempts to score points which have nothing to do with the substance of the issues before us.
I have made no attempt to label the views of Deputy Shatter's party on this issue as being anti-life or anything else for that matter.
We should be thankful to the Minister for that.
I am not in the business of attaching labels but if I were I would be at a loss in the case of Deputy Shatter's party because I have no idea, from what the Deputy said, of what their approach — other than to call on us to slow down — really is. On the other hand, it seems to be the case that the Deputy's party accept the need for a constitutional amendment. That, in logic, can only arise because they find some aspects of the Supreme Court's judgment in the X case unacceptable. I have no idea from the Deputy's contribution what aspects of the judgment they have a problem with. The Government's approach has been clear.
The entire Government?
We accept the Supreme Court test in every respect except a risk of self-destruction. We have explained why we believe that aspect of that test to be unacceptable. In these circumstances, for Deputy Shatter, as his party's spokesman, to do no more, in effect, than wonder aloud about various aspects of the Supreme Court decision, giving no clear statement as to where his party stand on these matters, and then to suggest that we are the ones who are playing political games will be seen for what it is. I am afraid it is difficult to avoid concluding that remarks of this kind by the Deputy, combined with a call which amounts to saying that the best approach to take for the present is to procrastinate in relation to the issues dealt with in the Bills before the House, reveal a reluctance to actually deal with — and take a position on — the real issues involved.
I accept, of course, that many Members indicated during the debate their firm and genuine opposition to widescale abortion becoming available here. However, Members, while making that point, have been very short on specifics as to how this is to be achieved. In particular, I have heard no proposal put forward as an alternative to the Government's which would, in reality, achieve the objective which I believe many Members share.
Try placing trust in women as mothers.
Deputy De Rossa stated that the amendment is anti-life. The amendment is anything but anti-life. It leaves undisturbed the existing affirmative acknowledgement in Article 40.3.3.º of the right to life of the unborn, with due regard to the equal right to life of the mother. The effect of the amendment is to afford full protection to the lives of pregnant women and it negatives the Supreme Court's test in respect of suicide but in no other respect.
What is suicide?
The mental health ground must in the Government's view be removed because it would result in more, not fewer, lives being lost and this has been the experience in other countries. In effect the changes in the law proposed by the Democratic Left Part would introduce legislation here not dissimilar to that in our neighbouring jurisdiction where there is widescale abortion on demand.
Many Deputies have complained about the time-table which the Government have set in this matter. I would remind the House, however, that the Party Leader's statement last June indicated that legislative and/or constitutional changes arising from the Supreme Court decision would be placed before the Dáil by the Government as soon as is practicable and, in any case, by the autumn. The Government have delivered on that. We have honoured the commitment which was made to the people. The Leaders' statement also referred to a referendum on the issues of travel and information being held in the autumn. I think most people would have concluded from that statement that if the Government decided that the substantive issue should be dealt with by way of an amendment to the Constitution that this referendum would be held at the same time as the other referenda. The people in accepting the Maastricht Treaty no doubt were influenced by the commitment given to deal with the issues arising from the decision in the X case. I think that it would be utterly unreasonable now to expect them to deal with the issues on travel and information not knowing what is going to be done on the substantive issue. Indeed I believe that such an approach could have implications for the likelihood of the amendment on travel and information succeeding.
In response to the point made by a number of Deputies opposed to excluding suicide as a ground for termination of pregnancy, I refer the House to the contribution which the Minister for Health made to the debate last evening when he dealt with that matter thoroughly. I would just like to reiterate one point he made: if it is very difficult to predict accurately in an individual case, accepting suicidal tendencies as a ground for termination would be likely to lead to the certain loss of many unborn children, without any certainty that even one suicide had been averted.
Women as murderers again.
I turn now to the Thirteenth Amendment Bill on freedom to travel between the State and other states. There has been general support in the debate for the aim and general effect of this proposed amendment to the Constitution. Some reservations have been expressed, however, about the form of the amendment and about whether it achieves the effect it is desired to achieve. I am satisfied that the reservations are not well founded.
Deputy Spring suggested that the wording provided for in the amendment on travel seemed to assume that there is a general right to travel under the Constitution even though, he says, such a general right is not referred to in the Constitution.
I am unable to agree with the Deputy that there is no such existing constitutional right to travel. On the reading of the judgments of each of the five judges of the Supreme Court in the X case it is clear that such a right exists. For example, the Chief Justice spoke of "the very fundamental nature of the right to travel and its particular importance in relation to the characteristics of a free society" and he did so in a context in which he made it clear he was talking about a constitutional right. Judge Hederman referred to the "exercise of the Constitutional right to travel." Judge McCarthy referred to the right to travel having been identified as one of the unenumerated rights guaranteed under Article 40 of the Constitution.
Deputy Spring seems to suggest that the proposed Thirteenth Amendment as it stands means that the Oireachtas could at some future time prohibit a pregnant woman from travelling abroad for an abortion because the amendment simply says that Article 40.3.3º shall not limit freedom to travel. It seems to me to be straining things a bit to suggest that an explicit provision of the Constitution to the effect that considerations arising by virtue of Article 40.3.3º shall not limit freedom of travel could be circumvented by ordinary legislation saying that considerations of a similar kind could be invoked to restrict that freedom. That is apart altogether from the inherent improbability of the Oireachtas ever attempting to enact such a law, given the unqualified support there is from all parties and the virtually universal support there is from the general public for freedom to travel.
Deputy Spring has referred also to the fact that, before the enactment of Article 40.3.3º, the courts indicated that the unborn is implicitly protected by other provisions of the Constitution apart from Article 40.3.3º, so that those other provisions could be relied on in a travel injunction case, since the proposed amendment relates only to limiting the scope of Article 40.3.3º.
The right to life of the unborn is now explicitly recognised and guaranteed by Article 40.3.3º. That explicit guarantee has been held to take precedence over the right of the mother to travel where she intends to leave the State to have an abortion and there is not a real or substantial risk to her life. If the people by referendum now decides that that express guarantee is not to limit freedom to travel out of the State, surely it is fanciful to suggest that the courts would circumvent that expression of the will of the people by reverting to a possible implicit guarantee of the right to life of the unborn that had been referred to in a case prior to the creation of the express guarantee in Article 40.3.3º? I am advised that a reference to Article 40.3.3º in the proposed Thirteenth Amendment of the Constitution Bill is sufficient to achieve the aims of that Bill.
Deputy Spring also stated that the amendment should seek to protect the right to receive a service lawfully available elsewhere in addition, as he says, to simply establishing the right to travel to receive such a service.
I am satisfied that the amendment as it stands will ensure that a woman who wishes to travel abroad to avail of a service in another jurisdiction that is unlawful here but lawful in the other jurisdiction will have the right to do so in the knowledge that an injunction may not be taken against her to stop her travelling. There is no good basis for any suggestion that, even though a woman is by virtue of an express provision of the Constitution not to be injuncted from travelling abroad, she could still be injuncted from having an abortion after she travels abroad. Of the three Supreme Court judges who in the X case found that a general injunction against travel abroad could lie where there was no real and substantial risk to the mother's life, two explicitly rejected the idea of an injunction confined to restricting a woman from leaving the jurisdiction for the purpose of having an abortion outside the State — on the basis that such an injunction would not be effective to protect the right of the unborn to life.
While I do not accept the need for Deputy Spring's amendments to the Bill on freedom to travel, they are all at least well and truly constructively motivated. I cannot say the same for Deputy Shatter's contribution on this issue which amounted to no more than some cheap shots at the bona fides of having the constitutional amendment proposed in the Thirteenth Amendment Bill side by side with that proposed in the Twelfth Amendment Bill.
I seem to have unduly upset the Minister.
The fact that something is prohibited in the State is no reason to prevent a person travelling out of the State to avail of it in another state where it is lawful. This is not a phenomenon peculiar to this country. Nor should the fact that something is lawful in another state and some Irish people travel there to avail of it mean that it should be made legal here. We have our own value system about how the public interest and the private interest should be balanced with regard to what should or should not be lawful in the State.
The substance of the Fourteenth Amendment Bill, on freedom to obtain or make available information, has also received general support in the course of this debate, though again there have been some reservations expressed about its form and about the fact that the legislation on this matter had not been published. To take the latter point first, my colleague the Minister for Health has, of course, now indicated to the House what the contents of the Government's legislative proposals on the information issue will be. The draft legislative proposals on the information issue will be. The draft legislative proposals themselves will be published shortly so that when the people vote on the proposed amendments to the Constitution they will have a clear picture of what the conditions that are to be laid down by law will be.
In outlining the proposed legislation, the Minister for Health explained that the information of a general nature will be permitted to be made available through certain media, provided that it is factual and does not seek to promote abortion in preference to alternative courses of action. However, where a pregnant woman seeks advice concerning her own specific circumstances from, for example, a doctor or an advice agency, it will only be permissible to supply information concerning abortion services in the context of full non-directive counselling on all of the options open to the person concerned.
Is suicide an option?
If, having considered all of these options, the woman decides that she wishes to seek an abortion outside the country, the doctor or advice agency will be free to provide whatever further information she may need. However, abortion referral will not be permitted, since this goes beyond the provision of information.
My brief reference to this matter in the course of my earlier speech was, of course, entirely consistent with this, but I am glad to have the opportunity to clarify it further for Deputy Owen.
Deputy Spring has objected that the wording of the proposed amendment is negative rather than affirmative, that it does not create a right to give or receive information and that it does not prohibit the Oireachtas from banning information. The purpose of the proposed amendment is quite specific. It is to address the fact that the dissemination in the State of information on abortion which is unlawful in the State but lawful elsewhere is prohibited by virtue of Article 40.3.3º of the Constitution. The intent of the amendment is to remove that restriction on the freedom there would otherwise be to provide and receive such information and to make that freedom subject to such conditions as may be laid down by law.
I want to conclude by shifting the focus from the individual Bills for a moment and looking at the overall thrust and balance of what the Government are proposing. I would ask that I might be given time.
An Leas Cheann Comhairle
Does the House agree? Agreed.
Give him time.
I thank the Leader of the main Opposition party. The positive affirmation of the right to life of the unborn, with due regard to the right to life of the mother, which was adopted by the people in 1983 and is contained in Article 40.3.3º of the Constitution, is being retained. The essence of the test laid down by the Supreme Court in interpreting that provision is also being retained, except that a risk of self-destruction will not be a ground for termination of pregnancy. The proposed amendment on the substantive issue will protect the right to life of the unborn child whole at the same time ensuring that the mother will receive all treatment that is necessary to resolve any life-threatening medical condition she suffers from, even if that treatment results in the loss of the unborn child's life. The amendment is pro-life, affording as it does the maximum practicable protection to he life of both the mother and the unborn child. It is also designed to avoid the possibility that abortion as that term is understood in everyday usage — in other words termination of pregnancy which is not for the sole purpose of saving the life of the mother — might become available in this country. That is why it excludes health unrelated to a risk to the mother's life as a ground for termination of pregnancy.
The right of pregnant women to travel between this country and other countries, whatever the purpose of their journey, which was freely exercised before the X case, is being restored. The one point on which there was a virtually unanimous groundswell of public opinion after that case was that there should be no restriction on freedom to travel by reason of Article 40.3.3º.
Important new rights to receive information, including non-directive conselling, about abortion services available in other countries are being conferred on women. Again, there was a widespread feeling among the general public after the X case that information of this kind should be accessible to pregnant women, especially those in crisis pregnancies, who should be free to make an informed decision in awareness of the full range of alternative options available. As my colleague, the Minister for Health, has made clear, directive counselling, or the actual advocacy of abortion, will not be permitted in the proposed legislation on this subject.
The whole question of the right to life raises the most profound and delicate issues, moral, medical and legal. Harmonising competing or conflicting rights to life, in particular, creates problems of a most difficult, not to say intractable, kind. The X case and the public debate in its aftermath gave rise to a series of complex and difficult issues. I think that any fair-minded and impartial observer would be prepared to acknowledge that the proposals in the three Bills to amend the Constitution that are now before the House represent a conscientious, reasonable and balanced response to those issues and one that is in the public interest. The Government are satisfied that these proposals are the correct response to the problems arising and are happy to commend these amendments of the Constitution to the people in the forthcoming referenda on 3 December.
I propose to the House that the motion to give the three Bills in question a Second Reading should now be adopted.
Twelfth Amendment of the Constitution Bill, 1992. The question is on amendment No. 3 in the name of Deputy Shatter.
Cuireadh an cheist: "Go bhanfaidh na focail a thairgtear a scriosadh".
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- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Reynolds, Gerry.
- Ryan, Seán.
- Shatter, Alan.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine
- Timmins, Godfrey.
- Yates, Ivan.
I declare the Bill to be read a Second Time. In accordance with Standing Order 93.2 the Bill will be considered in Committee on Tuesday, 27 October in accordance with the order of the Dáil of 21 October 1992.