I observe that an amendment to section 1 has been ruled out of order.
Tairgeadh an cheist: "Go bhfanfaidh alt 1 mar chuid den Bhille."
Vol. 424 No. 4
I observe that an amendment to section 1 has been ruled out of order.
Tairgeadh an cheist: "Go bhfanfaidh alt 1 mar chuid den Bhille."
I regret that the amendment I tabled, which proposed the deletion of subsection 3, has been ruled out of order. It is my contention that the current problems facing the Government in relation to abortion derive directly from the appalling sectarian amendment which was incorporated in our constitution in 1983. There is no point in rehashing the debate that took place in 1983, but it was categorically stated at the time by those promoting the Eight Amendment that it was not intended to change anything, that it was simply intended to maintain thestatus quo. It was stated that it would not interfere with the protection of the life or the health of women, their right to travel or the right to information. Those of us who opposed the amendment forewarned on all of these issues. It was equally claimed that all it was intended to do was to ensure that the 1861 Act could not be struck down by legislation in this Parliament.
We now know of course that that has not been the case, that quite a lot has been changed since the passing of the Eight Amendment of the Constitution. We know that students have been hounded by the courts and charged as a result of complaints that they were distributing abortion information and the courts have banned such information. We know also that books on health have been removed from our library shelves——
The Deputy seems to be embarking on a Second Reading speech which is inappropriate on Committee Stage of the Bill. His amendment has been ruled out of order for obvious reasons, that it is in conflict with the principle of the Bill as read a Second Time. Perhaps the Deputy's speech should be reserved for the Schedule where most of the amendments appear. There is nothing much in section 1 and, therefore, I expect Members to be brief in regard to it and to reserve their main comments for the amendments to the Schedule. Amendments Nos. 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 all relate to the Schedule; it is not for the Chair to advise Members how to utilise their time but I respectfully submit to them that the least delay should occur on sections 1 and 2 of the Bill and that we should proceed, as quickly as possible, to deal with the amendments to the Schedule.
A Cheann Comhairle, I thank you for your contribution. I am speaking to section 1 which provides for the amendment of Article 40.3.3º. of the Constitution. I was making the point that we would not be in the current situation if we had not amended the Constitution the way we did in 1983 and left the Dáil free to legislate in whatever way it saw fit, given the public support — or otherwise — of abortion in limited circumstances. I disagree fundamently with what is proposed in section 1.
I will be putting the section shortly.
I am explaining why I oppose section 1. I intend to call a vote on it because I disagree fundamentally with the concept that we can solve our abortion problem by simply amending Article 40.3.3º. That is the purpose of my comments; I was making the point that it was alleged the amendment would change nothing and that, in fact, it has changed quite a considerable amount in relation to information regarding the stocking of books on women's health on our library shelves and on the circulation of internationally renowned newspapers likeThe Manchester Guardian, which we know was prevented from being distributed in this State because it carried an advertisement on information regarding abortion clinics in Britain. All these things are a direct result of the 1983 amendment and we should not simply pass over section 1 because it seeks to further amend Article 40.3.3º in a way — as we will see when we come to the amendments to the Schedule — which will simply provide for abortion in extremely limited circumstances and will not address the problems which this State faces. That is the very stark problem, at least 5,000 Irish women have gone to Britain for abortions in the past year. It would be a mistake for the House to simply agree section 1 when it approaches the problem in a totally inadequate way. I argued on Second Stage, and otherwise both inside and outside this House — that it is time this House took its courage in its hands and faced the reality that Ireland has a problem in relation to abortion which we cannot ignore by pretending it does not exist. We must put services in place for women who find themselves in that position and provide for circumstances in which someone can legitimately obtain an abortion in this State.
I shall now put the question.
I wish to contribute to this section.
I wish to conclude my remarks. It is regrettable that the amendment I tabled, seeking to propose an amendment to our Constitution which would delete Article 40.3.3º, was ruled out of order. It would have given Members of the House freedom to legislate for abortion in this State in the light of the current circumstances.
I am concerned about our reversion to what could clearly be said to be Second Stage speeches on Committee Stage. I must dissuade Members from making such speeches.
I am sure you will agree that my contribution will be relevant to the point. During the Second Stage debate the Minister for Justice, who is now paying very close attention to what I am saying——
He is very concerned.
My remarks are addressed to the Minister for Justice. In his contribution on Second Stage he stated that the Government were not persuaded of the need for supplementary legislation — supplementary to the proposed constitutional amendment — but that they would listen carefully to any views expressed on this matter during the course of the debate. The Minister, in his reply to the debate, did not address that question. In my contribution, I identified a number of reasons for bringing legislation forward; among these was the difficulty in attempting the encompass a matter as complicated as this in 55 words in a Constitution because, no matter how well drafted and chosen the words, they are inherently open to doubt and debate as to their precise meaning. In seeking to deal with the matter solely through the Constitution we are, essentially, handing over what would otherwise be a legislative role to the courts in so far as the main decision making process in the area will be through judicial interpretation rather than through legislation. That is not a good way to make law in any country, particularly in one which prides itself on being a parliamentary democracy. I said I accepted that a matter of this nature — being one of life and death — was something which should be properly dealt with in the Constitution. I accepted that it should be dealt with in the Constitution and that an amendment to the existing Article is justified because of the decision of the Supreme Court which would appear to allow suicide as a general ground for abortion. I said that needed to be changed — and can only be changed — by constitutional amendment.
Having said I accepted that, I went on to argue that if we intend to deal with the matter in the Constitution we should also deal with it by legislation, to avoid doubt. I outlined in my contribution, to which the Minister did not advert in his concluding remarks, many difficulties which might arise in defining, for example, the meaning of the term "life" as distinct from "health" in practical medical situations, for example, where the threat to life is not immediate but is real just the same. There is bound to be a situation in which one medical person could argue that it is just a threat to health and another could argue that it is a threat to life. As we know, medicine is not an exact science, if it was we would not see medical people being called quite frequently on opposite sides of court cases, some to argue that the matter is very serious and others to argue that it is less serious. Indeed, some people make almost a profession of appearing as expert witnesses on opposite sides of cases concerning medical issues. Quite clearly there are areas in which the guidance of the Legislature would be extremely helpful in setting out in detail the parameters we intend or the way the terms used in the Constitution are to be interpreted.
The Minister was not present in the House when I spoke, for reasons I am not going to question, and so far as I am aware he did not reply to this aspect. It seems to me that the House has a clear obligation to set out in detail the way in which we expect this provision to be applied in practice. Otherwise, people will vote on a subject about which there is a great deal of confusion. The public will hear people making categoric assertions as to the meaning of the terms of the Constitution which directly contradict one another and confusion will be the result. One group of doctors will say that the wording has one meaning and another set of doctors will say that it has another meaning; one set of lawyers will say that the wording has one meaning and another set of apparently equally eminent lawyers will say the opposite; one set of politicians will say that the wording has one meaning and another set of politicians will say that it has another meaning — but that would not cause any great surprise. People will be surprised, though, to hear so many eminent lawyers and medical people in direct contradiction with one another. It is my belief that as a result of the contradictions and confusion the cause that the Minister is seeking to serve will not be served. It is very unfair to the public that there should be a debate in which people are hotly contradicting one another without anyone being in a position to arbitrate as to who is right and who is wrong, that there is debate on an issue on which the public are left to make the decision in the midst of a storm of contradiction across the airwaves. That is another reason for my feeling that the Minister would have been well advised to introduce first legislation that would accompany any constitutional amendment he was proposing. Such legislation would have been able to go in sufficient detail into the kind of circumstances that might arise. For example, for certain heart conditions doctors will now have to decide whether a termination of pregnancy is necessary to save a woman'a life. It is clearly important that guidelines be set down but that cannot be done by way of constitutional amendment because the Constitution is too short and terse a document for that. A guideline should be set out for doctors on the way in which that decision should be made and such guidelines can be set out only in legislation. I am surprised that for that reason the Minister has not decided to introduce legislation. Perhaps in replying to this contribution he will indicate some change of mind.
The Minister needs also to address in legislation the issue of legal liability for certain decisions. For example, a doctor might decide that a woman needs chemotherapy during the first three months of a pregnancy but some medical evidence might suggest that such treatment could lead to very severe damage to the child in the womb though the child would be born alive. Being born alive, the child would obviously have to be cared for and the cost of care and the burdens that would have to be borne financially as well as in every other way would be great. Under such circumstances one could forsee civil court cases being taken under which one party, suing on behalf of the child, would sue either the mother's doctor or the mother herself on the grounds that if the doctor or the mother were insured, damages could be obtained, the proceeds of which would be used to support the child. It would appear to me that such a civil case would not be decided on traditional grounds of long-established legal interpretations in relation to torts in general, damages and so forth, but would be decided on the basis of this provision of the Constitution, on the basis of whether the doctor made a decision which was justified on the grounds that he or she was dealing with a life-threatening condition.
I am sorry to interrupt, Deputy. You will have heard my earlier comments in respect to the manner in which I feel the Committee should deal with this stage of the Bill. I feel that much of what is being said would be more appropriate when dealing with amendments later. Seemingly, Members feel that they may now embark on Second Reading speeches on section 1, which is a very limited section, as is section 2. Little or no regard is being had to the amendments proper, tabled by various Members and various parties of the House, on the Schedule. I am concerned that the Committee proceed to deal with this constitutional measure in proper order. For that reason, I ask Members to have regard to what is contained in section 1. Let us deal with sections 1 and 2 and then get down to the nitty-gritty of the amendments.
Could I put it to you, Sir, that we need deal with the Schedule only if we decide to make the amendment to the Constitution at this juncture?
Members have to accept that the Second Reading of this Bill has been disposed of and the Chair is loath to hear a repetition of Second Stage speeches.
The Second Stage was passedinter alia on the basis of a statement made by the Minister, which I quoted at the outset of my speech, to the effect that the Minister would listen carefully to views expressed about whether legislation would be necessary to accompany the amendment. It is that question that I am trying to tease out with the Minister. I have almost finished and, though you may think otherwise Sir, I am not trying to be difficult. This is a genuine point.
I should say that the Chair is quite unconcerned as to the way in which Members may dispose of this limited time. I am merely seeking to direct the Deputy in a certain way so that the time might be utilised to the best advantage of the House in general.
I think we all want to get the best outcome from this discussion, and it is a pity that it is being rushed.
Would the Minister not agree that legislation would be helpful in dealing with the aspect I have outlined?
There is a final point I should like the Minister to deal with in relation to the question of whether he will have legislation to accompany the amendment. I speak of a possible challenge in the European Court of Human Rights to this or any other amendment. It is my understanding that the European Court of Human Rights would be much less likely to upset a provision on an issue of this kind if it were set out in fairly robust and detailed legislation and would be much more likely to upset any decision we might make if we confined ourselves solely to 55 words in the Constitution. It seems that the more detailed are the procedures, the more liabilities are set out and the more exceptions are provided for, the less likely it is that the European Court of Human Rights would upset the decision. The more abbreviated and terse the provision, the more likely it is that the decision would be upset.
The last thing anyone in the House would want would be to labour long and hard to put in place a legal position only to discover that it was upset subsequently elsewhere. It would seem to me that all sides of the House would recognise that factor as justifying legislation. Therefore, I have to ask the Minister for Justice whether he has not considered that argument as a justification for providing legislation first or to accompany this amendment.
I hope the Minister will reply to the points I have raised.
I should like to make some brief points on the generality of section 1 of the Twelfth Amendment of the Constitution Bill. I feel strongly that this is the appropriate time to make those comments because I am extremely concerned that by virtue of section 1 and the course we are now adopting and will pursue, we will compound errors that have been made by this House in the past.
Obviously, the errors made in the Eighth Amendment of the Constitution are all too plain to see. In fact, the views expressed in 1983 by Deputies Flynn and Woods, in particular, arguing for the insertion of Article 40.3.3º highlight the uncertainty of this issue. The Minister should take the opportunity to address his reasons for not bringing forward legislation to give effect to our responsibilities as legislators. In 1983 Members gave their strong views which have turned out to be totally wrong and the courts have established their incorrectness. It is time for people to acknowledge that and admit we are embarking on a course of action that will more than likely end in a bigger mess than the Eighth Amendment of the Constitution. In that respect I say to the Minister that legislation would go someway towards reducing the uncertainties that now confront us.
The obligations on the House have been well detailed. This is an extremely complex issue, one described as being so complex by a moral theologian recently as to almost defy summary. I accept that view. It defies summary in a constitutional amendment if we are serious about trying to provide a solution to the difficult and complex problems confronting us.
The judgement of the late Mr. Justice McCarthy, which has been mentioned in this House, should be the guiding judgment to us as we undertake our responsibilities. There are many areas of conflict and uncertainty between the Taoiseach and the Minister for Health in their public comments on this issue. The Minister for Justice, Deputy Flynn, gave a different version in the Dáil than had been given a matter of days previously by the Taoiseach and the Minister for Health. Perhaps on this Stage we will get clarification of some of those uncertainties. I would say to the Minister for Health that section 1 is leading us down a path which, unfortunately, we were led down in 1983, and those Ministers played a major part in that campaign. All the opinions and certainties expressed with conviction by the present Minister for Justice in 1983 have been proven to be totally incorrect. We should acknowledge that before it is too late. I worry that by accepting section 1, and pursuing this course of action by constitutional amendment, we are creating a problem rather than solving one.
This section, in effect, allows us to insert additional words in the Constitution which are contained in the Schedule. I do not want to delay the House by repeating what Deputies Bruton and Spring said but it is clear from the Schedule and this section, and from what the Minister has said to the House so far, that in addressing this issue the Government's sole intent is to provide for the insertion of an amendment into the Constitution.
Section 1 deals with the authority to go ahead and amend the Constitution. From this side of the House has come the message that there is a need for legislation and not simply a need for a constitutional amendment. It would be remiss of us today if we did not remind the Minister that the need for legislation has also been acknowledged by Government colleagues. It is noteworthy in this context that when the Minister gave his response to the Second Stage debate on the Twelfth, Thirteenth and Fourteenth Amendment of the Constitution Bills on 21 October 1992 for some reason that I find difficult to understand, he omitted to either refer to or respond to the comments made by the Minister for Industry and Commerce. I do not want to go into those comments in any great detail but I want to refer to comments made by the Minister who is part of this Government as to the need for legislation, comments which confirm the views expressed by Deputies Bruton and Spring. In dealing with the mere insertion of additional words into the Constitution the Minister for Industry and Commerce, Deputy O'Malley, said something that all of us know to be the case but which the Minister seems to have great difficulty in acknowledging. He said:
There are plenty of lessons to be learned from the X case. One is that the only interpretation of words in the Constitution that counts is the view formed by the Supreme Court. Ministers, Deputies, doctors, clerics and lawyers can in all good faith give their view of what certain words mean, but their interpretation has no standing whatever.
The need for legislation is based on the fact that you cannot fully and properly address this issue by simply amending the Constitution. A simple amendment to the Constitution, in a sense, is an abdication of legislative responsibility because we are then leaving it to members of the Supreme Court, in a particular case or cases, to tell us what those words mean. Indeed, if any lesson should have been learned from 1983 it is that any Member of this House who stands up here and asserts, in absolute terms, what words we are proposing to insert in the Constitution mean does so at his or her peril.
If we are engaging in a true dialogue in this House — and not a dialogue of the deaf — the debate last week should have brought that home. We are not engaged in trying to score political points but rather in trying to address a serious and difficult issue and, indeed, one that is greatly confusing many people outside this House. There have been so many disparate interpretations of the Minister's proposal that section 1 would provide for being included in the Constitution from all sides, including his own, that that of itself should ring the alarm bells. I do not wish to make a political point out of this but it is a reality that Members on the Government side of the House, even within the Fianna Fáil Party, have expressed a degree of confusion as to what the words mean. Apparently, the Minister's speech last Tuesday was such a wonderful presentation that all of a sudden all the fog cleared at the end of it. Clearly, the fog did not clear in the minds of his other colleagues in Government. The Minister for Industry and Commerce, Deputy O'Malley, again making the case for legislation, said:
Surely the most fundamental lesson to be learned from the X case is that hard-case exceptions do occur. Surely this should cause us to pause and ponder the wisdom of our actions in trying to reduce the whole complex question of the balance of rights between a pregnant woman and her unborn to a single constitutional statement.
Why on earth can we not consider this as a serious problem? Why is it that apparently anything said from this side of the House in this area is to be disregarded? It is all part of a political game of macho politics between Fianna Fáil and the Progressive Democrats; who can look the longest into the other's eyeballs and who will blink first. Is that what the game is about? Are we truly trying to address something of great seriousness?
It is very curious that the Minister refused and failed entirely to respond to what Deputy O'Malley said. Even if the amendment was passed in its current form the Minister for Industry and Commerce, Deputy O'Malley said:
No matter what the people of Ireland decide in December regarding the Twelfth Amendment on the so-called substantive issue, the Progressive Democrats believe that legislation will be essential to guide doctors in dealing with the real life cases that simply will not readily comply with the formal constitutional text now proposed.
I said something similar here the day before Deputy O'Malley's speech. Presumably, Deputy O'Malley was making this case within Cabinet and within Government. Why is it that the Minister will not address that issue?
It would be reasonable in the context of section 1, which authorises a new provision to be inserted into the Constitution, for the Minister to acknowledge that legislation is needed and to acknowledge what the Fine Gael Party are saying, that legislation should be brought before the House and at least published prior to a referendum being held.
The fact that there are, in a state of confusion, so many groups on different sides of the debate, many well-meaning people outside this House with similar concerns to ours, who have no particular axe to grind should be sufficient for the Minister to realise the need for legislation in regard to the Amendment.
Deputy O'Malley went on to make other points which are more appropriate to the formal amendments to the Schedule and I intend to deal with them at that stage.
I am very anxious to avoid a rehash of the Second Reading of the Bill which has been disposed of.
I do not wish to delay the House further other than to say to the Minister that there is a great need for him to clarify why he is excluding legislation and ignoring the wish of the majority of the Members of this House in that regard. The Progressive Democrats are within that majority. It is curious that their views are not deemed worthy of any serious consideration. We are used to Fianna Fáil members in Government ignoring what the Opposition parties say, but one would expect that they would at least take half seriously what their colleagues in Government say. I realise that the position of the Progressive Democrats is anomalous, the aim of the Fianna Fáil Party is to shove the Progressive Democrats out of Government on this issue. That is not what this debate should be about and it is regrettable that it has reached that stage. I hope that during the afternoon some member of the Progressive Democrats will be in the House to express their views on the Committee Stage of this Bill. When that party were about to be formed, Deputy O'Malley made a very impressive speech describing how he was standing by the Republic. However, it appears that on this issue and on a number of other issues the Progressive Democrats, rather than standing by the Republic, are bystanders in the Republic. There is a serious issue in relation to this Bill which the Minister is not addressing. That issue is relevant to section 1 and the Schedules and we deserve a more detailed response than the Government have yet given.
I support the proposition made by Deputy De Rossa that section I, as proposed, should not stand part of the Bill. It is the motor of the vehicle which the Government propose to put before the people on 3 December, the proposition they are maintaining, that the complex issue of the availability or, indeed, non-availability of abortion in Ireland or for Irish women abroad can be dealt with by way of an amendment to the Constitution and by no other device. For that reason the proposition that section 1 should stand part of the Bill should not be supported.
In essence, the section and the wording proposed by the Minister is built on a proposition that was inserted into the Constitution in 1983, a proposition which, in itself, was wrong in principle and was as unnecessary and as divisive then as it is today. It is wrong to ask us to legislate in relation to such a proposition. The Government's approach to this issue has singularly destroyed whatever basis or potential for consensus there may have been both inside and outside this House and which could have been built on and acted on. It is time we appreciated and admitted that, while there are differing degrees of opposition to abortion as a general right and facility here, it is necessary in certain circumstances. That principle has been accepted on all sides of the House. In proposing this legislation, the Minister admitted that there are restricted circumstances in which abortion must be made available in our jurisdiction. That arises out of the X case which illustrated that there cannot be written into any Constitution words that would absolutely guarantee against anything happening in the future — that we cannot legislate out of existence the Supreme Court, their function and role as interpreters not only of our laws but of the Constitution itself and say that, as times change, views there will also change.
The 1983 amendment was put before us on the basis that it was an absolute set of words that would guard against, first, the Supreme Court even providing an alternative opinion or, secondly, the Legislature having to act in regard to providing for abortion in Ireland in some circumstances. Those events have now occurred and we are making a grave mistake by not recognising that there are no absolutes in this world, that there is no formula of words available to anyone, including the so-called pro-life lobby, that will provide a solution from their point of view.
Mr. Justice McCarthy correctly chastised the Oireachtas for not providing legislation based on the 1983 referendum. While the Minister has produced a formula of words under section 1 of the Bill, there will be a need for legislation one way or the other after this legislation is passed. I urge the Minister to again reflect on the Government's approach to this matter and to take note genuinely of our reservations and concerns. Even if we proceed with the wording as it is the Government should at least undertake to examine the position in the light of the legislation as passed and bring forward legislation that will put some meat on it. The amendment is not sufficient in itself. For those reasons and because the Government have not indicated a willingness to address the need for legislation, intending instead, to stick squarely and stubbornly to the amendment, we believe that the section should not be supported by the House.
It would be helpful if the Minister would reply to the points which have been made. A number of substantial points have been made to which he did not have the opportunity to reply on Second Stage. I hope he will do so whenever it is appropriate.
I note that Deputies Barnes and Fennell are offering.
There is no sign of the Minister offering.
Listening to this debate one is astounded at the apparent assumption of a lack of logic and of dignity on the part of the electorate.
In regard to the amendment which many people had grave doubts about in 1983, suffice it to quote a politician who said recently in another Parliament and about another matter, "the sky was darkened with the chickens coming home to roost". The sky has been darkened by the interpretation of the Supreme Court in regard to the Eight Amendment of the Constitution and that interpretation is of concern to anybody who worked either for or against that amendment in 1983.
The most logical extension of our experience, particularly through the X case, a lesson learned through painful embarrassment, was that words cannot be inserted into a Constitution to cover such a complex and life-threatening issue. It is not possible. Other countries through changes in their Constitutions have learned this lesson painfully as well. The late Mr. Justice McCarthy spelled it out, not in a mild way for us as legislators, but by way of criticism that we had not legislated to back up that amendment.
The 1983 amendment failed on every level, now we are trying to put a patch on a faulty amendment, but the patch will only add to the confusion and to the life-threatening aspects of this amendment if it is put before a confused electorate and voted upon.
I would remind the Minister even at this stage, that this is a Republic and a State we can be proud of and it represents democracy. Democracy must start with the leadership by legislators the voters have entrusted to give leadership and legislative guidelines. That is the principal reason we were voted into this House, and I would like all Members to remember that. What has happened? We have been debating a wording to which every party in this House, including the Progressive Democrats but excluding Fianna Fáil, objected. We have requested that legislation be introduced so that we would not put to the electorate a wording that would not only lead to confusion but might lead women and men to believe the issue had not been clarified and that they did not have the right to vote on this issue because the legislators had let them down. We have not spelled out the implications of this wording and it will take only a few years, rather than the nine years the other amendment took, for this amendment to be appealed to our courts and to the European courts. Once again we will receive world media attention, we will be shamed and embarrassed and people will wonder how this could have happened. We never intended this amendment to have these incredible implications. Surely we should have learned our lesson. It is important for us to say in fairness that in 1983 many people, out of a real concern, voted in the belief that they were voting on a serious moral issue over which they could have some control.
Perhaps the Deputy could relate her remarks more closely to section 1.
We do not have a majority of this House supporting this amendment to the Schedule; we have a majority asking for legislation first. The majority of voters will not be clear on this issue. In order to assert ourselves as legislators and to do what is expected of us in this Chamber and in the Seanad, it is wrong for us to consider putting the wording and the Schedule as they now stand to the people. Daily the Minister must meet people who tell him they are concerned and confused. Half of the electorate are wondering not only if their health but if their lives, too, is in the balance. This amendment is anti-democratic, it is anti-life and it is certainly anti-women. I wish the Minister would respond seriously to that.
The Deputy has referred to this Schedule on a number of occasions, but I have to advise the House that there are two sections prior to that, sections 1 and 2, which have not yet been disposed of, and we cannot address the Schedule to which all the amendments relate until we arrive at the Schedule. The Chair is advising Members of the need to dispose of sections 1 and 2 and then the amendments proper. I had indicated to Deputy Nuala Fennell earlier, I now call Deputy Fennell.
I wish to speak briefly on this section. The reason we did not have division on section 1 in the other Bills was that people agreed with the need to have a referendum on travel and on information. They were quite specific on that. I believe there is general support among the electorate for what we are doing in that regard. However, this is an entirely different issue.
I wholeheartedly oppose what we are doing in this Bill. What we are doing is, I believe, dangerous and wrong. In all the Second Stage speeches last week, we had a catalogue of women's problems. The Minister for Health referred to cardiac failure, renal failure, hyper-tension, brain tumour, breast cancer, cancer of the uterus, and I could go on if I had a medical directory or encyclopaedia with me. We are talking about all these issues in the context of the need for an abortion, a need for us to develop new thinking, having challenged our own thinking on the issue of abortion. However, we are trying to put cement into our Constitution, yet one more concept which will make it more difficult for people to understand what they are doing, it will make it more difficult for doctors to understand their rights and the rules govening their particular procedures.
We are dealing with an issue which involves a risk to the life and health of women. We are not talking about introducing social abortion, abortion on demand. We are dealing with a crucial issue. We have had the play and the replay of all the problems that can confront a woman which can make it necessary, even essential, that termination of a pregnancy is considered. The Constitution is the wrong place to insert such provisions. If we have a referendum on a simple issue — say, do you want PR? — people can vote yes or no. However, nobody knows what will happen in regard to this issue.
I appeal that we turn back, suspend this Bill and bring forward legislation. I have a cutting of theIrish Independent of 22 October which has the heading: “Taoiseach offers tough choice to pro-life lobby”. Obviously, the Taoiseach has spelt out somewhere the type of legislation he would introduce. I see this as nothing but blackmail and a threat, but if the Taoiseach or the Minister for Justice have this in mind — and obviously he has a framework he wants to introduce — it should be before this House now. We should know what we are talking about. I strongly object to the fact that elected representatives are being treated like school children. If legislation is likely to be introduced — I suggest that it is likely because I can see this amendment being defeated — the Minister owes it to us to say what type of legislation he has in mind and when it will be available.
(Limerick East): I should like to add my vioce to the appeal to the Minister to bring forward legislation which would give certainty to the words he is proposing to include in the Constitution. On many occasions constitutional interpretation is a bit like literary criticism and it is possible for legal practitioners to assess the same quantum of information and come to different conclusions. I remember on occasion reading essays on literary criticisms where one group of students could prove that Hamlet was mad and another group could prove he was sane, while relying on the same text. I have no doubt that barristers who are uniquely suited by their profession and training to argue diametrically opposed positions down to finality——
The Deputy can include his leader in that.
(Limerick East):——based on exactly the same information would have no difficulty in interpreting any constitutional amendment in different ways. We must remember that judges are barristers by profession in the first instance.
The Minister is being negligent in not looking at the decisions arrived at by judges in the past and what they said when they arrived at those judgments. I would refer him again to what Judge Walsh said in the McGee case during the middle seventies. He said that judges had an obligation to interpret the Constitution in accordance with the Preamble and, in particular, in line with the virtues of justice, prudence and charity, which are referred to in the Preamble. I should like to quote what Judge Walsh said:
The judges, must, therefore, as best they can from their training and their 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 interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.
That judgment was given in 1975. In 1976 in the Statev. O'Donoghue, Chief Justice Tom O'Higgins echoed the same point. He said:
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.
It absolutely follows that the Constitution is not going to be interpreted at the time of amendment purely by reference to the ideals which prevailed at the time of the amendment, if we could even come to a consensus on what those ideals are.
I suggest to the Minister that the judgments I have quoted are very significant. Mr. Justice Finlay quoted these sections with approval in the X case and said he was, in effect, continuing with that school of interpretation of the Constitution when he was arriving at his conclusions. He decided it was prudent, just and charitable to lift the injunction on the girl in the X case so that she could travel. Quite clearly, the more words that are included by way of amendment the greater the scope there is for a variance in constitutional interpretation. I suggest to the Minister that far more words are being included here than are necessary to exclude the suicide exception, if that is his intention.
One of the merits of the constitutional cases on Article 40.3.3º is that at least we now know what it means in so far as the Supreme Court is concerned. It seems to me that if the Minister was going down the constitutional road solely he should have preserved intact what had been adjudicated and simply dealt with the suicide exception by way of amendment, if that is what he intended to take out. However, the Minister has not done that; rather he has restored the ambiguity to Article 40.3.3º which the Supreme Court had taken out in the X case. That was extremely foolish.
It is also self-evident that in the absence of legislation it is not clear now and will not be clear in the future what the words mean. Of course, that is not the sum total of the problem. Even if we could now establish what the words mean that is not necessarily what they will mean in five years or ten years time, as a subsequent Supreme Court interpret them in accordance with the mores of the time in line with the Preamble of the Constitution.
It is worth noting that the X case was not the only constitutional adjudication on Article 40.3.3º. There were previous cases also. The same judges in previous cases of quite recent date — it is interesting to read the judgments — took a view far closer to that of the proposers of Article 40.3.3º than they took in the X case. It seems that the same judges changed their view fairly dramatically over a very short period of time about the essence of the case relating to Article 40.3.3º. That being so, I see no reason the same or different judges could not change their view fairly dramatically again in the future.
The third point I should like to make is that previous judges of the Supreme Court, particularly chief justices going back as far as the time of the late Cearbhail Ó Dalaigh, have always argued that the Constitution is an organic document, that it is not possible to rely totally on just one section of one Article for one's interpretation and, in so far as the human rights and personal rights sections are concerned, it must be taken in its totality. In drafting this amendment the Minister went to great pains to draw a distinction — for many of us this is an unreal enough distinction — between threats to life and threats to health.
In interpreting the Constitution organically, there are other personal rights in it also. For example, the Minister has quoted and waved the stick of the Bourne case in the United Kingdom at us. He argued that he must include the phrase "as distinct from the health" as otherwise it would lead to a widespread abortion on demand and he quoted the British experience as a precedent. That is not the precedent in the United States. In the Roev. Wade case in the United States the constitutional interpretation was pinned on concepts of privacy, privacy of the woman, and bodily integrity. These concepts are unenumerated rights in the Irish Constitution also and I suggest a Supreme Court in the future will not be able to rely totally on simply an interpretation of Article 40.3.3º together with this amendment but will have to go right back into the panoply of personal rights contained in the Constitution and measure one against the other. It is not possible——
I am afraid I have to advise the House that while the contributions I have heard, including Deputy Noonan's contribution, are relevant to the legislation proposed, in accordance with Standing Orders, they are not entirely relevant to the rules which govern a Committee Stage debate.
(Limerick East): I am about to conclude.
Thank you, Deputy.
(Limerick East): I have two very simple points to make. I am advocating that the Minister is foolish to proceed without having a Bill before the House to spell out his intention or, alternatively, committing himself fairly strongly to legislation as soon as the amendment is passed and giving us an idea of what the legislation would contain. I have two further points to make to support this view.
Our Supreme Court has modelled itself to a considerable extent on the type of Supreme Court in the United States of America. This is particularly so in terms of the kind of judicial extension of boundaries we have had in Ireland since the middle sixties when various Supreme Courts found a variety of unenumerated rights in the Constitution. In accordance with this, it is relevant, as it is in America, to know who is appointed to the Supreme Court; personalities come into this. It would be possible to predict certain types of adjudications if one were to suppose that certain people who are now loud in the Law Library were appointed to the Supreme Court in, say, ten years time. Again, it needs legislation to give any certainty; otherwise we are transferring a primary function of this House to persons unknown who will be members of the Supreme Court in the future.
The Minister seems to be extraordinarily macho about introducing legislation if the amendment fails on 3 December. He has given commitments that there will be legislation to enshrine in law the decision of the Supreme Court. It seems the only reason the Minister is not bringing forward legislation arising from today's amendment is political cowardice. He is afraid it will not get through the Oireachtas. If that kind of modest proposal would not get through the Oireachtas to spell out in what circumstances intervention is permissible to save a mother's life, how can the Minister suggest that legislation will get through the Oireachtas which would enshrine in law the totality of the Supreme Court judgment? We have to take it that the Minister is not being fully honest with us and that he is simply waving a stick about legislation being introduced to enshrine the Supreme Court judgment in our law. A far more modest proposal would be to spell out in legislation exactly what is meant by these words.
I support a point made by Deputy Noonan. I raised the point on Second Stage, which the Minister did not answer, as to why 49 of these 55 words are required. The Minister made it clear in his opening speech that the sole reason for the amendment was to deal with the issue of self-destruction or suicide. Leaving aside the question of whether or not we want to eliminate that, if it is the sole reason, on what grounds are the other 49 words included? The logical thing would have been to draft a sentence such as "Notwithstanding the above, a risk of self-destruction shall not be regarded as a threat to life" or words to that effect.
When such a fundamental point is raised on the inherent self-contradiction in the amendment, the Minister ought to reply. I am sorry he did not do so on Second Stage and I feel he should do so now. Unless he can offer a very compelling explanation of that contradiction, there is no case whatever for the amendment to the Constitution as now drafted, even in terms of what the Minister wants to do. On the question of whether one should or should not exclude the case of self-destruction, it is an extremely difficult issue, on which I have great difficulty in making up my own mind. The case either way is compelling and it is very hard to know the right thing to do. Certainly if that is the sole purpose, the Minister would need to tell us what the other 49 words are for.
I call on the Minister. I might suggest to him that, as debate on this section has not been in accordance with orders governing Committee Stage, perhaps he would avoid the temptation of perpetuating the unwelcome course the debate has taken.
If I were to do that, I should not be called on to respond at all. Most of the matters raised were dealt with on Second Stage and some were ruled out of order, in that amendment No. 1 was not in order. Many of the matters are referred to in amendments Nos. 14 and 15. I have no difficulty in responding to some of the items raised, but the Chair is asking me to make a Second Stage contribution or a continuation of my reply to matters raised on Second Stage. I have no problem in doing that if it would be helpful to the House but strictly it is out of order.
The Minister is telling the Chair what the Chair has already announced. When things are done in an orderly way the end product can be better. Perhaps we could resolve at this stage to dispense with sections 1 and 2 and deal with amendments which are in order in the Schedule. I am advising the House what the position is. The House is well aware of the rules in respect of Committee Stage debate. We do not have another Second Stage debate on Committee Stage.
All of us on this side of the House appreciate your position in that you are seeeking to facilitate the House in relation to the most expeditious and fair manner in which business might be done. Members have spoken during the past one-and-a-quarter hours on a topic which the Minister raised on Second Stage when he referred to the possibility of legislation and said he would listen to the debate and respond. When he replied he just said that the Government are not persuaded of the case. He did not elaborate. In view of the very cogent arguments put forward for legislation first, why is the Minister unwilling to have such legislation? It is an important matter which needs to be cleared up as far as possible before proceeding to the Schedule.
I was not depriving the Minister of this right to reply, but I was indicating to him that he might encapsulate his comments rather than reply to all the points which have been made in the past hour.
He will reply with economy and precision.
I am sure the Minister will choose the points to which he wants to respond, regardless of what we or the Chair advise. Section 1 is the basis of this whole Bill in that it proposes the amendment of Article 40.3.3º and refers to the Schedule. I have made the case that we should reject section 1 and I would expect the Minister at least to attempt to respond by putting the opposite case.
It is in order for any Deputy to make the case that section 1 should be rejected.
It goes a little deeper than that. This section is being used as a vehicle for the addition of further difficult words to the Constitution. That begs the question as to whether the Minister intends to have legislation to explain what these additional words will mean. Otherwise we will be compounding an error made in 1983. The Minister intends to use this vehicle for further amendments to an already deficient constitutional amendment. It has been proven to be deficient in the view of the public. We expressed views on it but we were outvoted. We are adding insult to injury. Does this require legislation? The Minister said "no" before but he might say "yes" now.
Most of the points which have been raised were made on Second Stage and it is not in order to remake those points on Committee Stage.
We have now had nearly one hour and 20 minutes of this debate, during which Deputies have raised serious issues. We are raising queries and questions which have not been satisfactorily answered by the Minister. I am anxious to avoid our having to raise these issues again if the Minister does not respond. We should hear what he has to say. Perhaps we will then make progress.
The Chair was not going to be so bold as to prevent the Minister from replying. I was suggesting to the Minister that he would make his reply as brief as possible without extending the debate further. Because the debate has been extended, we cannot entirely exclude the Minister from replying and he will reply now. However, in respect of future comments I hope we will bear in mind that generally speaking, in the opinion of the Chair, the contributions for the past hour were not exactly in accordance with Standing Orders governing Committee Stage debate. That is the point the Chair wanted to make. The Minister will now reply.
This section sets out the principle of adding these words. Unless the Minister can give some reason for 49 of the words, I have to oppose it. I cannot know whether to oppose it if the Minister does not answer the question. There must be some reason for having these words. The Minister must have some idea in mind. I want to know the reason so that I will know how to vote. It is essential that we get this information on section 1. Where else can we get it?
I commend the Chair on his anxiety to allow the Minister to reply. As one who has paid close attention to this debate——
I did not get the Deputy's basis for his commendation.
I am taking the liberty of commending the Chair for his anxiety to allow, and indeed to encourage, the Minister to reply to the debate so far. In the interests of order in the House, may I take it that when the Minister has made whatever observations he sees fit to make, it will be open to me and other Deputies in the House to go back and seek to elaborate on observations he might have made or, if necessary, to remind him of gaps in the observations he might be about to make, so that we can clarify things further.
Such elaboration might be possible, I was suggesting, when we reach the amendments or when the question is put that the Bill be now passed.
I can foresee that irrespective of what the Minister says all these matters will be raised again on the other amendments, dealing with the very items the Chair has been referring to, in particular amendments Nos. 14 and 15. Be that as it may, we can move along and, I hope, get some kind of understanding on the matter. Amendment No. 1 was ruled out of order, and of course it is out of order for me to refer to it now.
It is not out of order for me to refer to it now.
As this liberty has been taken, I must say that amendment No. 1 simply proposes the deletion of Article 40.3.3º. I had hoped we would not spend much time discussing that. I had hoped nobody would raise it because it is hardly being seriously——
We did not raise it. Deputy De Rossa raised it.
I raised it.
It was raised on a couple of occasions and Deputies De Rossa and McCartan seemed to think it was an important matter on which to contribute. It is hardly being seriously suggested in the House that the people who voted by such a large majority to include Article 40.3.3º in the Constitution would be likely now, nine years later, to reverse their views and vote to remove Article 40.3.3º from the Constitution. That prospect is not likely and, because of that, I regard the amendment as academic. I fail to understand why it is being pursued but, be that as it may, people are entitled to comment.
Deputy Bruton referred to a remark I made in my Second Stage contribution when I raised the question of legislation and the possibility of legislation being introduced to supplement the amendment. In responding to Deputy Bruton when winding up the debate——
That was not a reply. That was a straightforward dismissal of the other point of view.
I said that the test proposed in the amendment was straighforward and it was based on whether termination of pregnancy is necessary to save the life of the mother. I indicated I did not think it would give rise to any difficulty in practice and that I would certainly listen to contributions made in that regard but that it did not seem to us then, nor does it seem to us now, having listened to some of the contributions that have been made with regard to the possibility of introducing legislation in advance of the amendment, that that suggestion holds water. I gave a brief outline of my reasons for refusing that suggestion when summing up Second Stage debate. I specifically mentioned that the amendment which the Deputies talked about would, in effect, negative the suicide aspect of the Supreme Court test for the termination of pregnancy. Any legislation to supplement the amendment would have to take that change in the law into account.
It is reasonable to suggest that it would be objectionable even from the legal point of view, not to talk of the general point involved, to bring legislation before the House and almost through the House in anticipation of the outcome of the decision of the people in a referendum. That would not be an appropriate thing to do or to contemplate. It would be unusual to have legislation introduced on the assumption that something will happen, but not quite finalise it, while awaiting something to happen. Apart from being unusual, Deputy Bruton will agree that it would seem somewhat bizarre to proceed in that fashion. I left that aside and said I would listen to further argument to see if there was a good basis for contemplating what the Deputy had in mind. I got alternative views even from among his own party. Deputy Nuala Fennell expressed the view that it should be left aside entirely, that we should deal with this matter of legislation in isolation and leave the amendment until some other time. That is not possible.
We need legislation.
It is not possible because we have already decided there will be a referendum on 3 December and that it will involve three questions put to the people. There was a general understanding and acceptance last week across the House that the referendum would go ahead. We all agreed that it should.
One and two, yes. They are necessary.
We agreed to go on the first two but not on the last.
It seems there is a difference of opinion between the Deputies on the Fine Gael benches, and the leader of that party.
You are wandering again.
(Carlow-Kilkenny): You are dreaming.
The problem is the Deputies are not listening to what their own leader is saying, or is it that some of the Deputies do not agree with the leader's attitude in this matter?
We are all agreed that legislation is necessary.
Except that some people feel that there should be legislation and no referendum on 3 December.
There should be a referendum on travel and information.
Deputy FitzGerald did not listen to some of the contributions I heard. Unless the Deputy is to have some variation of the theme as well, I suggest it should be left at that, that there is some disagreement among Fine Gael Deputies as to how they would wish this matter to proceed.
That is the confusion that exists in your minds, but not in mine.
Tell us about 3 December.
Tell us about Deputies Lenihan, O'Kennedy and so on.
The Chair will have noticed that while others spoke for the past hour and 20 minutes, I did not interrupt anybody.
You have nothing to say.
I have plenty to say. I was going to get in at every second opportunity, but everybody wanted to have a second go at a Second Stage type contribution. The latitude was given. I understood quite specifically, listening to last week's contributions from the Leader of the Fine Gael Party, that it was understood a referendum would be held on 3 December. I am now hearing different vibes from other people. I will not pursue that any further because I know it causes a little confusion in the thinking of some of the Deputies.
(Limerick East): Why does the Minister not address the section?
The truth is that, strictly, everything we are saying on this matter at this time is out of order, as the Leas-Cheann Comhairle indicated.
The section is still before us.
Deputy Bruton did say that it would be less likely that the European Court of Human Rights would challenge the amendment if there was detailed legislation. Whether the legislation was to be finalised before the referendum or afterwards was not quite clear, but that was his opinion. I see no reason why the European Court of Human Rights should challenge a provision which is designed to protect women. Whether or not there is detailed legislation in addition to the amendment does not seem to me to have any bearing on that issue.
Deputy Shatter made comments about different things. He said that because the interpretation of the constitutional amendment is a matter for the Supreme Court legislation is necessary to say what the interpetation of the words should be. I put it to Deputy Shatter that, whether or not legislation is enacted, the interpretation of the amdendment would still be a matter for the courts, just as the interpretation of any legislation would be a matter for the courts, and any legislation enacted could put an interpretation on the amendment which would be binding on the Supreme Court if the court took a different view.
The Minister is supposed to know what he means by the amendment.
That is the point I am making, that Deputy Shatter is of the view——
The Minister is supposed to know. He is supposed to be the one who will be in a position to make sure the legislation says and does what the amendment is intended to do but, because the Minister does not know what the amendment sets out to do, he cannot write the legislation.
I stated in quite some detail on two previous occasions precisely what the amendment sets out to do but Deputy Shatter suggests that if one had legislation to give better understanding or interpretation of the words it might somehow influence the Supreme Court in some way that they might not otherwise be influenced. I do not accept that. The Supreme Court is the ultimate in so far as the interpretation is concerned anyway——
As the Minister found out in the X case.
——and we are satisfied that the interpretation does not need to be expanded upon in so far as legislation is concerned.
Deputy Shatter also went into detail about comments made by other members of the Government. I am not going to go down that road with him because, of course, he did not have the opportunity of listening to whatever, if anything, was said by the Government concerning this matter except that he should at least bear in mind and accept that the collective responsibility attached to the Government in dealing with this matter should be clearly understood by him. On the previous occasion it was put to the test in the House it was proved to be so, and and Deputy will find the same this afternoon. He should not be pursuing this type of conversation because it is not helpful.
The Minister should not hide behind the tyranny of the Whip. He should deal with Deputy O'Malley's concerns and say whether they are valid.
If Deputy O'Malley has concerns and wishes to express them he has two opportunities of doing so. He can do so at the Cabinet table if and when he wishes and he can do so here or in any other place. I cannot prevent him speaking in any of these places.
Are they not worth a response when they are expressed here?
All I am saying is that there is a Cabinet decision on this matter and he should bear this in mind. If he wishes to test it he obviously will be calling a vote before too long anyway and he will be testing it then in the most effective way possible.
I accept what he says — basically, that the courts, if asked in a specific case will make any interpretation they see fit. The fact that there are disparate interpretations knocking about outside this House might be reflected upon as being different attitudes to things we have agreed upon rather than as a difference of opinion in so far as the interpretations of the words are concerned. That is a different matter and we have seen some element of that this afternoon. The arguments of some people who are opposing certain elements of this legislation bear no relationship with the understanding I know is coming from the Opposition side of the House. We heard a good instance of it this afternoon. There are certain individuals in the House who do not want this amendment——
The Minister should have said, there are certain Deputies in the House. We are not disparaging of the Minister and the Minister should not seek to be disparaging of us by his remarks.
If I chose today as the day to be disparaging of Deputy McCartan I would be picking a good day to do it, but I am not choosing to do it. I am saying that a different point if view has been expressed by Deputy McCartan and others in this House and it is that we should not be here discussing this matter at all, that there should be no amendment put to the Irish people on 3 December and that the only thing we should be doing is removing what is already there——
The Minister should be bringing forward legislation.
——which I understand was accepted by all sides of the House. As I understood it we all accepted that Article 40.3.3º should stay in the Constitution in that it sets out to guarantee the right to life of the unborn and the equal right to life of the mother. I understand that is something we all subscribe to. However, it has been indicated that that is not being subscribed to with as good a will and so collective an understanding by certain Deputies. I regret that that is the way it is but at least today, unlike on Second Stage, we are getting the true position of a certain Deputy or Deputies on the whole question of abortion and the introduction of abortion services into this country.
The Minister is at it now.
I raised that. Deputy Shatter had not as many supporting him on the previous occasion when this matter was raised by me and I heard shouts from the side asking me to name people. It was necessary to name them then because I knew that, as sure as day follows night, when the time came they would put their marker down. They have done so today so that at least those outside have a good idea how Deputies McCartan and De Rossa view this matter. I presume that what Deputy Shatter says — and I must be careful how I phrase this — represents what some of the other Deputies in Democrat Left feel on this matter. I am pleased to hear that finally.
(Limerick East): It was people like the Minister who in 1983 brought abortion into this country, albeit by way of the subsequent Supreme Court decision. Is it not hypocritical then to start throwing stones at other people?
The Deputy is quite right. I did vote for the Eighth Amendment in 1983.
It was even suggested that the President of Ireland would be running abortion clinics in the Phoenix Park. Did the Minister forget that too?
I am quite happy to state that I did vote for the Eighth Amendment. Could I put the same question to Deputy Noonan? Did he support it on that occasion?
What a fine mess the Minister got everyone in.
I can only interpret Deputy Shatter's reaction to mean that he did not support it on that occasion.
I did not, for the very reason that we might find ourselves in the position we are now in.
The Deputy is entitled——
If the Minister had been prepared to listen to what I and others were saying we would not have this mess in the first place.
It is the Minister's mess; he created it.
That is rich, coming from the Deputy.
The Government of the day refused the advice we gave and insisted on forcing the amendment through.
I am quite happy to say that I did support it in 1983.
The Minister was wrong and every word out of him now proves that.
He should tell us about 1992, not about 1983.
From the chorus I am hearing from the Opposition I take it that some people now wish to put it on the record that they did not support the 1983 amendment.
We put it on the record at the time and the Minister's present Office is totally out of keeping with that contemptible mean-minded attempt he is at now. The Minister should address the issue. He was wrong in 1983.
I do not know why the Deputy is taking that attitude.
Let me interrupt. Could we resolve that we will apply outselves to the problems before us in a fashion that would do credit to the House. I do not think, in circumstances where I hear repeated every hour of every day that this legislation may lead to rancour, divisiveness——
It did in 1983.
I would suggest, Deputy Ferris, that if the public are taking the lead from what I have been hearing for the past hour, they have good reason for it. Could we resolve that we will apply ourselves to what is before us in a fashion that will be in keeping with importance of the legislation and, more important, in keeping with the good standards of debate in this House.
It is the Minister who brought the debate down to this level.
The Minister should reply to the points that were made rather than trying to ascribe motives to people.
The Minister has inadvertently been encouraged to deal with the principle of the Bill which should have been dealt with on Second Stage. The Second Stage debate is about the principle of the Bill——
The essence of the Bill.
——and we should now on Committee Stage be dealing with——
——the words, not the principle as you, Deputy FitzGerald, indicated earlier. That has been dealt with already on Second Stage.
We are all agreed that we dealt with the provisions of the Bill.
If I had been asked to respond to the specific question put by the Leader of Fine Gael, Deputy Bruton, I would have been able to say to him straight away that I had heard nothing during the course of the debate on Second Stage which would have convinced me that it was necessary to proceed in the way suggested by him and would have sat down but I would then have been accused of not referring to what Deputies De Rossa, McCartan, FitzGerald and Fennell had said. One cannot win in this situation. I have noted some of the matters referred to, which I accept were out of order, but if I do not refer to them it will be stated afterwards that I dodged them for some reason. I do not know what you want me to do, a Leas-Cheann Comhairle——
Talk about the substance of the issue.
I will respond to the points raised by Deputy FitzGerald in a few moments.
I want the House, having presented questions to the Minister, to remain silent while the Minister is replying. Members will have an opportunity to comment later on.
The Minister is being provocative.
The least that he is entitled to is an opportunity to reply without interruption.
The Minister is inviting us to interrupt; his demeanour is provocative.
I did not interrupt the Deputy, but I suppose, as Leader of the Opposition, he is entitled to interrupt.
I was not provocative.
I must ask the Minister to address the Chair.
Deputy Barnes referred to the need for democracy in these matters and made the point that voters look to the legislators to give leadership but it occurred to me as she spoke in this vein that voters were quite specific in 1983. It was their wish that the legislators would act in a certain way. They also made it quite clear in the way they addressed the 1983 amendment that they did not wish to see any changes made without the matter being first referred back to them. I would have thought that everybody would have concluded that what we were doing in referring the amendment back to the public was precisely in accordance with their wish expressed in the 1983 referendum. I take it that the Deputy shares this view.
The point I was trying to make was that a large number of people did not vote because they were so confused.
The Deputy made the point that the electorate should not be confused in these matters and I think that was a fair comment. When I replied to the debate on Second Stage I said that I would not be able to respond to every single question raised. I am sorry that I did not respond to the points raised by Deputy FitzGerald and I will attempt to do so now. I answered as many of the basic questions as possible in the short time available to me and thought I did so rather well. Indeed, some of the Deputies on the other side of the House suggested to me afterwards that I had made a decent effort to respond to the points made in the limited time avilable.
Deputy Barnes is right when she says the electorate should not be confused. However, I do not think they are confused in relation to what we want to achieve.
Only the Government are confused.
It seems, as the days go by and as people outside the House make contributions and issue statements, there is less confusion, and I hope that as the weeks go by, it will be eliminated entirely. I do not think the people want to see abortion introduced into Ireland.
The Government are proposing it in certain circumstances. Why do you play this game?
This is a pro-life amendment——
Who introduced it in 1983?
——as is the Twelfth Amendment of the Constitution as well. I think the public want to see the Supreme Court test retained in all circumstances apart from suicide. If comments made outside the House are to be taken into account, they do not want suicide to be regarded as a ground for termination. They want to see some protection for pregnant women, which is one of the fundamental aims of the amendment and they want them to be entitled to receive whatever treatment is necessary where there is a substantial risk to their life. They want to see this right enshrined in the Constitution. They want to see Article 40.3.3º retained in so far as the right to life of the unborn is concerned, with the mother having an equal right to life. The public know exactly what they want and it is our contention that the wording will ensure this neatly. I am pleased to learn today that some of the senior people who commented on this matter on a previous occasion now feel that we have got it right in that regard. I sincerely hope that the House will also accept this before the end of the day.
I have already referred to what Deputy Fennell said in relation to the proposal that the referendum should be cancelled. I do not think I should say anything further except that I believe Deputy Fennell is wrong in that regard although she expressed it in a fervent way. I suggest that the amendment should be disposed of along with the other two referenda on 3 December and that that is the best way to proceed. This is no more than what the general public expect of us. The Government proposal that the referenda on the right to travel and information as well as on the substantive issue should be held on 3 December has received a warm welcome. It is my understanding that the vast majority of Deputies who represent the vast majority of the people of this country also share this opinion.
Deputy Noonan spent some time in dealing with a previous judgment handed down by Mr. Justice Walsh in which he stated that no interpretation of the Constitution can be final for all time. I suppose that is true and I see nothing wrong with that. Deputy Noonan also made the point that times change and that the questions of prudence, charity and justice would apply in the judgements given by judges at various times. Indeed, I thought he was making the case for me at one stage. We are trying to clear up whatever ambiguities might have arisen, in so far as the Eighth Amendment of the Constitution is concerned, from the Supreme Court interpretation that suicide could be regarded as a ground for the termination of pregnancy where there is a substantial risk to the life of the mother. However, they set out the test clearly.
It would be fair to say that no one foresaw the Supreme Court judgment of 5 March this year but, as I said, they set out in some detail the test to be applied. As I have quoted this test on a couple of previous occasions it is not necessary for me to do so again. They made it possible for us, in regard to the language used in the judgement handed down in the X case, to frame an amendment to deal with the matter referred to by Deputy Noonan. It was for that reason that the language used in the amendment was chosen. In using the language used in the Supreme Court judgment I put it to the House that it is not now necessary to do what Deputy Bruton suggested. I have not heard any good argument which would convince me otherwise, but that does not mean that the matter is finished even today.
Deputy Noonan went further about the possibility of the amendment failing. I do not contemplate that. I think the vast majority of people will see precisely what was intended here. I predict that any element of confusion — to which people have referred — about understanding can be cleared up between now and the date of the referendum. It is my hope there will be a resounding understanding by way of a "yes" vote on the part of the electorate.
Taking a hypothetical case of the electorate deciding to vote "no", I say to Deputies Barnes and Noonan one would have very little alternative except to take that as a clear indication they wanted the matter attended to other than by seeking to change the Supreme Court judgement of 5 March last. We are saying we want to take out suicide as a ground for termination of pregnancy. If the electorate said "no" in those circumstances they would be saying to us "no, we do not want that". Obviously the implication of the alternative is that, in some circumstance, termination of pregnancy must be permitted. That would require legislation; I accept that. I would regret it but it would be the will of the people and would have to be attended to in that fashion.
Therefore, I contend that was a very fair thing to say rather than leave some people in some kind of limbo, asking what will happen if there is a rejection of the referendum proposal or if it is not endorsed by the people on 3 December next. That was the reason that was said in that way. I think many people thought it was a very fair comment to make because, in those circumstances, the people would have been turning their backs on what we were asking them to do, asking us to accept the full thrust of the Supreme Court judgment which allowed for abortion in certain circumstances in this country. We do not want that and we are asking the people to support us in that matter.
Deputy FitzGerald maintains the amendment should simply confine itself to saying that self-destruction should not be a ground for termination of pregnancy. I might point out that the present amendment does three things. It enshrines the Supreme Court decision except, of course, in the case of proposed self-destruction; Deputy FitzGerald is quite right there. It excluded self-destruction and, by using the phrase "as distinct from the health" ensures that in the future health could not become a ground for termination of pregnancy. That was specifically using Supreme Court language in order to prevent abortion being introduced into this country by some other means, as has happened in other jurisdictions, thereby creating circumstances in which there would be widespread abortion available. We did not want that.
Somebody said to me that sounded harsh. I replied that we looked at a whole range of words that could have accommodated the same thing in another way. However, it reverted to the simple fact that if one is to do it effectively one must use the Supreme Court language itself, so that whatever interpretation there has been already more than likely will withstand the test of time in so far as the language used would be the same. That was the reason for that. It is being used only to ensure that abortion cannot be introduced into our jurisdiction on some other ground, some other day. We wanted to prevent what Deputy Shatter referred to, the possibility of another referendum in a couple of short years.
We were seeking also to endeavour to put in place circumstances in which matters would not be referred to the Supreme Court if at all possible but, of course, as we have all said, anybody can take a case; we are all agreed on that. However, the use of the language, as in this amendment, we think overcomes the matters raised by the individuals concerned. Certainly it will never overcome the matters raised by Deputies McCartan and De Rossa. We are quite happy in saying that. By and large, that is my answer which I recognise refers to other amendments tabled.
Deputies have contended that the amendment might be open to different interpretations by the courts. I should like to revert to that matter in so far as Deputy Shatter's contribution was concerned. What Deputies seem to forget in that regard is that the amendment is based in every single respect, except self-destruction, on the test set out by the Supreme Court. I should like people to remember that because it is the basis of the whole argument that has been going on here, the decision in the X case. Therefore, I believe there is little basis for suggesting that the amendment would be interpreted in any other way. I have nothing more to say except that I would oppose amendment No.1 tabled by the Democratic Left. The other matters raised substantially by Deputy Bruton and added to in different ways by others have been answered reasonably.
We should hold the referendum, have it positively endorsed and I predict it will work without hindrance.
The Minister sought, with characteristic mischievousness, to seek to represent the position of the Fine Gael Party on this matter inaccurately and misleadingly. As he knows, our position is that the House should not consider this amendment of the Constitution until 15 January next by which time the Government should have produced the legislation we believe to be necessary to underpin and explain it, and have that discussed here before we are asked to consider the amendment of the Constitution. It is our view that in that event we would have a much less acrimonious and a more informed debate. I hope the Minister has read me clearly in what I have just said and does not seek to make any attempt to reinterpret that position.
Having said that, the Minister missed a few points when replying. The first point he missed was the fact that the late Mr. Justice Niall McCarthy in the Supreme Court — and the Minister has been quoting the Supreme Court here frequently in support of his position — specifically criticised the Legislature for having failed to bring forward legislation to underpin the existing amendment of the Constitution. Now we are proposing to bring in another amendment of the Constitution supplementing that and are still not going to produce the legislation. Yet, the Minister is quoting the Supreme Court language to justify his wording. Of course, he failed to cite the quotation of the late Mr. Justice Niall McCarthy which is very relevant, when he excoriated this Legislature in terms I have rarely heard, in perhaps the most extreme criticism of this House from the Bench since the two institutions came into being. I refer to the criticism of the late Mr. Justice Niall McCarthy of this House and successive Governments since 1983 for failing to introduce that legislation. For us to carry on this debate, ignoring that statement of the late Mr. Justice Niall McCarthy, is unreal in that he made it quite clear that they, the Supreme Court, wanted to intepret the Constitution on the basis of legislation also to supplement, explain and deal with the particular aspects of it.
The late Mr. Justice Niall McCarthy went on to say that as far as abortion was concerned the Legislature had two responsibilities — a negative responsibility to prohibit abortion in circumstances in which it should be prohibited but also a positive responsibility to create conditions in which people would not find themselves having to consider that option. He made it very clear he believed that legislation should be introduced to deal with both the positive and negative responsibilities of the Legislature. He criticised us in particular for having failed to introduce legislation to deal with the positive aspect of creating social conditions and so on whereby people would not find themselves in that position.
The Minister appears to me to have failed to address two other points both now and on Second Stage as to why legislation should be introduced. The first point to which he failed to reply was the question of legal liabilities in the event of disputed decisions after the event. For example, would the civil cases that might arise not be likely to be determined on the basis not of existing, well established legal practice, but on the basis of an interpretation of this new wording in the Constitution? If such were the case, to avoid unnecessary litigation and uncertainty, rather than wait for case law to determine what is "health", what is "life" and so on, surely we should sort out those things in legislation before enshrining them in the Constitution. Will the Minister deal with that point?
I hope the Minister will not do so. Earlier I made the point I did not want circumstances to arise where there would be repetition of what had been ruled out of order. I would advise the House that we have before us an order which requires us to finish at 6.45 p.m. As there are 15 Committee Stage amendments, 13 of which are in order, in deference to Deputies we should resolve to get away from what is out of order and not be perpetuating disorders in this fashion. I ask Deputy Bruton to accept that so that we can proceed in the fashion that obtained in respect of discussion on every Amendment of the Constitution. The question will be put presently "That the Schedule stand part of the Bill", and a further question will be put "That the Bill do now pass". It is most disorderly to accept what occurred earlier as the base on which to operate. We all know that is not in order.
I would hate to find myself in the position of being in conflict with you, a Leas-Cheann Comhairle, in a matter of this nature. There is no need for a Schedule if we are not going to have an amendment to the Constitution at this juncture. What we are deciding in section 1 is the issue of whether at this time we need an amendment. It is my contention that we need legislation first, to be followed by an amendment which would be influenced by the debate on the legislation.
There are two other points in favour of legislation. First is the issue of conscientious objectors. In the family planning legislation of 1979 there is specific provision for conscientious objectors. It may be that under the proposed Amendment of the Constitution medical people will object even to performing the operations in the limited circumstances set out here. It seems that provision must be made for those conscientious objectors and for people who might have to rely on them for life saving operations. If it was necessary to make such provisions in legislation in 1979 in regard to family planning, which is a much less fraught and contentious matter, surely similar legislation is needed to deal with conscientious objectors in this instance.
The Minister should look at Article 27 of the Constitution which provides for legislation to be referred to the people. He made much of his argument which was an interpretation of what the people decided in 1983. He stated that the people said they wanted every such alteration to be subsequently referred to them. Just as people have great difficulty interpreting what the Danish people meant when they voted no to the Maasstricht Treaty, anybody who attempts to say what the people meant when they voted a particular way in a referendum is engaging in a fools' argument. Even taking that assumption as valid, it seems the Minister should look at Article 27 of the Constitution which allows for Bills to be referred to the people.
The Minister seemed to misunderstand Deputy Noonan's contribution. He seemed to think Deputy Noonan was arguing in favour of having a constitutional amendment first. As I understand it, what Deputy Noonan said was that if you rely solely on constitutional provisions, because of the way judicial interpretation changes over time and is, influenced by the atmosphere of the times, you will never achieve certainty, and that you are much more likely to achieve certainty through legislation, accompanied perhaps by a constitutional amendment. Legislation, because it deals with matters in greater detail and with all possible eventualities and circumstances that might arise, is much more likely to create certainty and predictability in certain cases than would 55 words in the Constitution.
Deputy Noonan elaborated on why legislation is necessary in view of the fact that in the interpretation of the 1983 Amendment the approach of the Judiciary changed in the period between 1983 and 1992. The emphasis of the decision changed significantly even in that short period. If the Minister wants certainty and the entrenchment of particular concepts he would be much more likely to achieve that by legislation, perhaps underpinned by a constitutional amendment than by a constitutional amendment alone.
I fail, therefore, to understand the Minister's insistence on this 55 word solution. Far from achieving the objectives he is seeking, he will, as he and others did in 1983, achieve the direct opposite. It behoves the Minister to take seriously the points made on this side of the House. They are not being made simply as debating points; they have validity.
The Minister stated that even today he is open to argument about legislation being introduced to accompany this Amendment, and I have given him a few examples of where legislation will be patently necessary — in the case of conscientious objectors, legal liabilities, procedures for determining disputes about medical treatments in hospitals and so on. The Minister has simply asserted that the European Court of Human Rights would be as willing to accept 55 words in the Constitution alone as it would to accept 55 words in the Constitution underpinned by legislation. My information — and I have good information — is that the European Court of Human Rights, from past performance in cases in other countries, would be much more likely to uphold a provision in the law of a member state if that was underpinned in detailed legislation which provides for determining disputes and deals with the position of minorities and people who may feel oppressed by a particular decision. The European Court of Human Rights would be much more likely to accept that position than it would a simple blanket provision of 55 words in the Constitution.
If the Minister is seeking, as I believe he is, certainty and predictability he should not rely on these 55 words alone because of the risk of them being overturned by the European Convention on Human Rights. That risk could be avoided by underpinning the constitutional amendment by legislation which would be discussed here first. The arguments are overwhelmingly in favour of introducing legislation first, and I hope the Minister will reflect further on this subject in the light of what has been said here.
I would like to refer to two points made by the Minister. Although the Minister, towards the end of his speech, left a door open, he was dismissive of the need for legislation. He said that the constitutional words are clear and straighforward. He used a form of wording that is apparently a mantra to be recited by members of the Fianna Fáil Party whenever this issue comes before the House.
I have researched all the debates that took place in 1983 and the Minister was one of the main proponents of the wording which is now in the Constitution. He and Deputy O'Hanlon, who was Health spokesperson for Fianna Fáil, recited the same mantra. At column 469, volume 340 of the Official Report of 17 February 1983, after Members of the Fine Gael Party put on the record of the House reservations about the Eighth Amendment of the Constitution, Deputy O'Hanlon said: "Fianna Fáil believe the wording we put forward is correct and nothing that has been said has convinced us that we should alter that view". That is a sentence I heard churned out in the Dáil last week on Second Stage and the Minister told us again today that nothing he has heard indicates that he should alter his view. If I were Minister I would be a little more timorous in my approach to this matter. I would drop the theatrical self-righteous indignation he engaged in at the beginning of his response to Members on this side of the House in the light of his record and that of his colleague in getting this issue utterly and totally wrong in the area of constitutional amendments.
In dealing with the specific issue of legislation, the Minister said that "publication of legislation would be objectionable because of the constitutional position." In other words, we could not possibly publish legislation based on an amendment to the Constitution because the existing legislation could be unconstitutional. The Minister said it would be a most unusual stance to take to publish such legislation.
Indeed he went on to say that it would be "bizarre" to publish legislation based on a change in the Constitution. I scratched my head when I heard that because the remark came from the same Minister who, approximately ten days before publication of the three Bills, including the Bill we are debating, published a paper on marital breakdown. What did it contain? It contained a suggestion that we might amend the Constitution in the area of divorce with five possible constitutional Articles, none of which has yet been put to the people, none of which forms any legislation in front of the House and none of which will be dealt with in a referendum during the lifetime of this Government. But what did we find in this document? The Government's proposed legislation to provide for divorce if the Constitution was changed. Apparently what is "bizarre" in addressing this area is the norm in addressing another area; if it is acceptable and usual to publish a proposed divorce Bill in the context of the legislation the Government might introduce if the prohibition on divorce was removed from the Constitution, what makes it bizarre to introduce and publish legislation that the Government might — and indeed should — introduce if this amendment, or a modified form of it, was made to the Constitution?
Can we please come back to section 1? It now seems to the Chair that Members are speaking with little or no regard to section 1. They are making general statements, Second Stage speeches and generalising. I should like Members to return to the Committee Stage procedures. We should dispose of section 1 as it is irrelevant to what is being said. The same applies to section 2 and we could then get down to the main business of the amendments to the Schedule.
I am merely responding to the Minister's reply on this section.
That does not make it in order.
Section 1 is relevant because, as the previous speaker, Deputy John Bruton, indicated, it is the section which triggers the holding of a referendum in the context of these words going into the Constitution. Members on this side of the House have made it clear that legislation is needed in advance of this trigger being pulled. This trigger has already exploded as a result of the Minister getting things extremely, extraordinarily and bizarrely wrong in 1983. Apparently he is willing to put his finger to the trigger again and make it explode without providing the details of necessary legislation.
The Minister, in his reply to the case being made that section 1 should not proceed without legislation, asked what way such legislation would influence the Supreme Court in interpreting the Article. The Minister should be aware that there is a plethora of Supreme Court decisions in relation to legislation which has been tested against the contents of the Constitution. In that context, in any legislation published after 1937 the Supreme Court start on the premise that the legislation has a presumption of constitutionality. In so far as this Article' provides the skeleton of principle to be applied in dealing with situations which affect the lives of mothers, women and indeed unborn children, detailed legislation would provide a comprehensive substance to the application and implementation of the Article. If such legislation was put in place it would be a starting point for the Supreme Court in applying these provisions and they would only set it aside if it was unconstitutional. You cannot divorce the need for legislation from the enactment of an Article. If this provision, like that of 1983, causes so much confusion and is open to so many disparate interpretations, the lesson of 1983 should be that we need legislation in this area if we are to have another referendum on this issue. It is not satisfactory for the Minister to tell us that there is less confusion outside today than there was a week ago; he has merely to pick up his newspaper to see the totally contradictory pronouncements by a variety of people who approach this issue from different angles, all from an interpretation they have taken from the 55 words.
A Cheann Comhairle, you — or the Leas-Cheann Comhairle — asked why we raise this issue in the context of section 1. We are doing so because, if we do not get a satisfactory response from the Minister, we will vote against it.
I call Deputy Dukes. Again I appeal for contributions relevant to section 1, we should proceedseriatim, which is the normal procedure on Committee Stage of Bills.
I intend my remarks to be relevant to section 1 and I hope, Sir, not to be in conflict with you. I will endeavour not to be. However, as Deputy Shatter said, this is the trigger section which provides basically for two things. It says: "Article 40.3 of the Constitution is hereby amended". It sets out to amend the Constitution and it goes on to provide that it will be amended as provided for in the Schedule. Deputy John Bruton pointed out why we believe that is the wrong procedure and why we should not have the words in the Schedule — or indeed any other words — without first enacting legislation.
I should like to dwell for a moment or two on why I believe it is wrong to provide that the Constitution should be amended, as the first part of this section sets out. Deputy Shatter referred to the lessons of the Eighth Amendment but the Minister and the Government do not seem to have referred to anything that happened in 1983. Those of us involved in the debate in 1983 will have a very clear memory of the fact that the proposal for amending the Constitution at that stage rested on a very simple proposition, that neither politicians nor the courts are to be trusted. I am afraid that some people may read the X case as being a vindication of that suspicion but, of course, they would be totally wrong because, what most of those critics seem to forget — and what most of those who claimed in 1983 that the courts could not be trusted seem to forget — is that our Constitution expressly provides that the Supreme Court are the ultimate interpreter of the Constitution. They are not the final framer of the Constitution, that is for the people, but they are the ultimate interpreter and if we put words into our Constitution no Member of this House can say to the people with 100 per cent assurance what those words mean. We cannot do that because, in the event that somebody with a properlocal standi in the issues takes a different view, the matter must be referred to the Supreme Court; the Constitution will mean what the Supreme Court say it means.
I have heard colleagues of the Minister for Justice — and others on the Government side of the House — say, wisely, as we were passing legislation through this House, that it did not matter what we said because the courts would not read the record of our proceedings and would not be bound by any meaning we might state here. That may well have been true and wise but it is a much more apposite comment in the case of an amendment to the Constitution. It is futile for the Minister for Justice to come into the House to say that he is satisfied beyond a shadow of a doubt that the meaning of these words is what he says it is — rather than maybe what the Minister for Health said the previous night — and that there can never be any dispute about it. The nine years which have passed since 1983 have surely given us all ample reason to understand that such assurances cannot be given. I am not casting doubt on the sincerity of the Minister's intentions, all I am saying is that the record and the constitutional reality show that we cannot accept an assurance of that kind from the Minister, even without including any intent on his part to mislead us. He cannot give such an assurance. At the end of the day we have no option but to trust the Supreme Court because that is what our Constitution provides. Of course, there is always the option if we disagree with a decision the Supreme Court has made, as many people do in this instance, to consider changing the Constitution. But, again, the lesson of 1983 and the Eighth Amendment should be that we proceed with great care because we are not the Supreme Court, we are not the final interpreters any more than the people are the final interpreters. The route of a constitutional modification should be taken only if we are very clear in our minds what we want to do and why we want to do it. I do not think the Government are very clear in their collective mind — if such still exists today — on what they want to do and why they want to do it.
The other basis for the proposal to have a constitutional amendment in 1983, and the reason we are having this debate today, was that politicians are not to be trusted. There was a feeling that there was some movement of opinion in the House that the proponents of the Eighth Amendment of the Constitution did not like.
Those people should remember why we elect Members of this House. We elect Members because in a democracy — even one as small as ours with 3.5 million people — it is hardly practical to have everyone involved all the time in making the decisions. We delegate people to make decisions on our behalf, hence, the word "Teachta." It also has the advantage that because Members are relatively near the electorate and they have to come back to the people at least once very five years — it happens a little more often than that — they can be held accountable for what they do. If this House were to do something that was utterly repugnant to the majority of people, the people have a remedy. They could put other people in place of any or all of the 166 Deputies.
The basic motivation of the people who proposed the original amendment that got us into all this trouble was highly suspect, both constitutionally and in the logic of their position. They should remember — and it would do a number of them no harm to remember now — that another advantage of having issues of this kind dealt with by the normal process of the Houses of the Oireachtas, through legislation, is that it is easier to change legislation if it appears there is a flaw in it than it is to change the Constitution.
There is another reason for legislation. I have had many discussions in the past nine years, and particularly in the past couple of months, with people who, like the Minister, say that the Supreme Court decision in the X case went against what people thought they were voting for when they voted for the Eighth Amendment of the Constitution in 1983. Such people keep coming naively back to the proposition that there must be some simple form of words that we could put into the Constitution to do what we think and the Minister thinks he is setting out to do. The more we try, the more it becomes evident that it is not possible to do that.
I am sure the Minister for Justice would have been one of the people to say, perhaps six or nine months ago, if the question had been put to him, that there must be a simple way of resolving this matter by putting a few words into the Constitution. The Schedule proposes the addition of 55 words. The Minister for Justice has a different view from that of the Minister for Health on what those words mean; both Ministers have a different view from that of the Taoiseach and the Minister for Industry and Commerce does not believe any of them.
I am not trying to be facetious and I am not accusing any one Member of insincerity — stupidity maybe but not insincerity. It is very clear that the Government, even having gone to the trouble of trying to put a clear amendment into the Constitution, have failed. The reason they have failed is that the issues they are dealing with are very complex. Those issues cannot be described or provided for in a text that is not itself complex.
I do not know whether the parallel is exact, but I defy any Member, no matter how well qualified technically and no matter how gifted linguistically, to describe without the use of a diagram the working of a differential gear in the driving axle of a car. That is a very straightforward mechanical process, but it cannot be described in simple words because the issue involved cannot be dealt with in that way.
When we add to this particular issue, which is much more complex, the fact that our understanding of the human person and of the human body continues to expand and that medical practice and medical treatments keep advancing — things are possible now that were not even dreamt of 20 years ago, and that will continue — it must be clear to any reasonable person that one cannot safely do what the Government seem to want to do, by the wording, complex as it is, in the Schedule. The Government are engaged in an enterprise that is bound to fail.
I have heard assurances from different Ministers and from other people in the past couple of weeks——
The Chair would be remiss, and is remiss, in its duty in not calling again for brevity in relation to section 1. What we are hearing are Second Stage speeches on the Bill and all its detail.
I am simply trying to point out——
Please, Deputy Dukes. We are making no progress on this Bill. We are getting bogged down on section 1. We are hearing Second Stage speeches, generalising, and we are getting nowhere. As far as the Chair is concerned, the procedure is wrong. I have consistently appealed to Members to work with me in getting to the nitty-gritty of the issues and the amendments before us, but Members are not prepared to play the game. Are we or are we not going to get away from sections 1 and 2 and discuss the amendments?
The Chair hesitates to intervene in this way, especially on the Committee Stage of a Bill to which is applied a rigid time limit. It is for Members to decide how they should utilise that short, precious time and it should not be a function of the Chair to put pressure on Members.
However, I am concerned about the clear violation of the Committee Stage procedure which is going on here today. It is a clear violation of all I have learnt in respect of dealing with the Committee Stage of a Bill. I ask Members to finalise this section and the section thereafter, to which no amendments are tabled, and let us move to the Schedule, to which all of the amendments apply.
I ask for co-operation in dealing with these matters as the House knows they should be dealt with. Deputy Dukes and so many others have long experience in this House and know how to deal with a Committee Stage.
I understand your concerns, Sir, and if I speak quietly it is because I do not want to be argumentative. However, my remarks are addressed to the two issues: One, that the Constitution is hereby amended by the addition of the words in section 1 (a) and (b), and, two, by the Schedule to the Bill. I am trying to point out why I disagree with the proposition that the Constitution be hereby amended without first — as Deputy Bruton has proposed — having legislation to clarify the issues. The issues are too complex and too important to too many people to be dealt with by way of a constitutional amendment as proposed here. I suggest that the example we have of the last constitutional amendment to deal with the issues covered in this Bill amply demonstrates why that particular approach is so unwise.
Many of the arguments made here today on Committee Stage have been made on the Second Reading of the Bill. What we are having is a rehash of Second Stage on this section, which is truly to be deplored.
That may be — and I would invite you to consider this, if I may, without appearing impertinent — because the substance of the Bill is the same as the principle. This is a straightforward matter: are we going to have a referendum or are we not? Will we have legislation before a referendum or not? That is the essence of the Bill. If there were 29 sections in the Bill, all dealing with various different things, I would accept more easily that you would have concerns.
The principle and the substance are the same.
The procedure is all wrong and the Deputy knows it is all wrong and the Deputy should do his best to rectify the matter.
This is the only section in the Bill that is worth a damn.
How you utilise your time in the final analysis is your affair. I will say no more on the subject.
I should like to come to another reflection, if I may. The Minister has relied several times, during the course of this afternoon's debate, on the assertion that people will see what is intended. We have had discussion about why the Minister believes that what he is proposing in this Bill is needed in order to give effect to what people intended in 1983. What I am saying is that, given the delicacy and the complexity of these issues, it is not enough to say to people that they know what he intends and that we know what the people intend — which ever way they vote — in order to be satisfied that the issue is dealt with. The experience of the Eighth Amendment of the Constitution shows that in the final analysis it matters not a great deal what people thought they intended when they were voting for the text; what matters at the end of the day is what the Supreme Court says that amendment of the Constitution means, and it is not enough for the Minister to continue to assure us.
In conclusion, the Minister illustrated just how fraught with danger this kind of assertion is when he stood up a few minutes ago and started to speculate as to how we might interpret what he calls the hypothetical case of a negative vote on this referendum. If people were to vote No to this text on 3 December how would we interpret that? Would that mean that they objected to the insulting words "as distinct from the health of the mother" that are being used? Would it mean they were in disagreement with what the Minister is proposing about an inclination to self-destruction? Or would it mean that people did not want to see abortion under any circumstances?
Or would it mean there were certain medical treatments with which people disagreed? Or would it simply mean that people had got so fed up with the confusion and the nonsense that has taken place on the Government side for the past couple of weeks that they just said, a plague on all your houses, we will not have anything to do with any of this? I do not know whether anybody could interpret or read it. I certainly would not be able to do so. If this matter is put to the people on 3 December — and the Minister has given no explanation why we must have it on 3 December — and they vote No, as I would hope they would vote if this is the text and all we have before us, I would not be able to come into this House on the following day or even the following year after studying it all and give an indication with any certainty as to why people had voted No any more than anybody is able to tell me today why people voted Yes in 1983 or what they had in mind then when they voted Yes.
I would ask the Minister, and I have deliberately refrained from being provocative, to reflect on those things again, if having been one of those — and he was in very wide company in 1983, some of it very august and sanctified — who advised people solemnly in 1983 that if they voted Yes to the Eighth Amendment of the Constitution, abortion could never happen in this country and now having found that given our constitutional procedures — of which I suppose he is a defender and good republican — and having lived through that experience, he has not come to the conclusion that with the best will in the world it is not open to him to give people the kind of assurances he has given them for the past few weeks and that it would, therefore, be prudent to deal with the details of this matter legislatively before we go any further with a referendum on this issue, the subject of this Bill.
A net point arising from section 1 is whether the section is desirable. The Minister's justification for 49 of the 55 words in the section was that they were replicating what the Supreme Court had said. First of all, if he were replicating what the Supreme Court said, it would be a work of supererogation because, they having said it, it is in fact the constitutional position, and putting it in the Constitution would do no good at all. Secondly, he is not doing that, he is taking the exact words of one judge and not using them. I do not know how he can say he is using them. The words the judge used were:
... if it is established as a matter of probability that there is a real and substantial risk to the life as distinct from the health of the mother, which can only be avoided by the termination of her pregnancy, that such termination is permissible ....
The wording here is quite different, "unless such termination is necessary to save the life"— words which the judge did not use —"where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, it shall be unlawful to terminate the life". If he wanted to replicate the judgment, which would be unnecessary anyway, what he should have said in this wording was: "it shall be lawful to terminate the life of an unborn if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health of the mother, which can be avoided only by the termination of her pregnancy". He has not done that. Incidentally, I have to say that Mr. Justice Finlay put the word "only" in the wrong place. Had I indeed been replicating his judgment I would have had a grammatical difficulty because he should have said "which can be avoided only by the termination of her pregnancy", the words "only be avoided" are not logical.
I would not have argued if the Minister had tampered with the judge's decision to the extent of shifting the word "only", but when he changes it around completely and makes it unlawful instead of lawful and introduces words such as "save" and "necessary" which the judge did not use and when he takes a statement by one judge and says it is a Supreme Court judgment and justifies the amendment by saying he wants to incorporate that wording in the Constitution and then does not do so, but introduces fresh ambiguities with new words, he knows he is talking nonsense. He has in no way justified these words.
The only thing he could possibly justify is what he said on Second Stage that he disagrees on the suicide issue. It is a point of view; you can accept it or not accept it. Having disagreed on that he would be entitled to bring before the House the last few words and have a wording "notwithstanding the above, a risk of self-destruction shall not be regarded as a threat to life". We could have debated that here, some might be for it and some might be against and the House could have decided it. What the House must not do is to incorporate, as a result of section 1, wording which is not wording used by any judge, under the guise of being the Supreme Court judgment, and introduce fresh ambiguities which will have to be interpreted by the Supreme Court eventually, and we have no idea what that interpretation will be. To do that would be unwise and absurd and the Minister has given no possible grounds for it. I cannot see how anybody in this House, on the basis of his arguments, could possibly support this amendment.
Cuireadh an cheist.
Ahern, Bertie.Ahern, Dermot.Ahern, Michael.Aylward, Liam.Barrett, Michael.Brady, Vincent.Brennan, Mattie.Brennan, Séamus.Briscoe, Ben.Burke, Raphael P.Callely, Ivor.Clohessy, Peadar.Collins, Gerard.Connolly, Ger.Coughlan, Mary Theresa.Cullimore, Séamus.Davern, Noel.Dempsey, Noel.Dennehy, John.de Valera, Síle.Ellis, John.Fahey, Frank.Fahey, Jackie.Fitzgerald, Liam Joseph.Flood, Chris.Flynn, Pádraig.Gallagher, Pat the Cope.Geoghegan-Quinn, Máire.Harney, Mary.Hillery, Brian.Hilliard, Colm.Hyland, Liam.Jacob, Joe.Kelly, Laurence.
Kenneally, Brendan.Kirk, Séamus.Kitt, Michael P.Kitt, Tom.Lawlor, Liam.Lenihan, Brian.Leonard, Jimmy.Leyden, Terry.Lyons, Denis.McCreevy, Charlie.McEllistrim, Tom.Molloy, Robert.Morley, P.J.Nolan, M.J.Noonan, Michael J. (Limerick West).O'Connell, John.O'Dea, Willie.O'Donoghue, John.O'Hanlon, Rory.O'Keeffe, Ned.O'Kennedy, Michael.O'Leary, John.O'Toole, Martin Joe.Power, Seán.Quill, Máirín.Roche, Dick.Smith, Michael.Stafford, John.Treacy, Noel.Tunney, Jim.Wallace, Mary.Wilson, John P.Woods, Michael.Wyse, Pearse.
There are a number of amendments in the names of Deputies De Rossa, Mac Giolla, Spring, Howlin and others. I note that many of these amendments are related. Amendment No. 3 is an alternative amendment to No. 2. Amendments Nos. 5 to 12, inclusive, are alternatives to amendment No. 3. Therefore, I suggest we debate amendments Nos. 2, 3 and 5 to 12, inclusive, together by agreement. Is that agreed? Agreed. That leaves three amendments to be dealt with at a later stage in the names of Deputies Spring and Howlin, De Rossa, Sherlock, McCartan and others.
Tairgim leasú a 2:
I leathanach 7, roimh an Sceideal, an méid seo a leanas a chur isteach:
Ní theorannóidh fo-alt 3º den alt seo saoirse chun foirceannadh toirchis a chur ar fáil nó a fháil sa Stát chun cosaint a thabhairt ar bhaol réadach substaintiúil do bheatha nó do Shláinte mná torraí ach sin faoi chuimsiú cibé coinníollacha a fhéadfar a leagan síos le dlí.
Subsection 3º of this section shall not limit freedom to provide or obtain, in the State, subject to such conditions as may be laid down by law, termination of a pregnancy in order to protect against a real and substantial risk to the life or health of a pregnant woman.".
I move amendment No. 2:
In page 6, before the Schedule to insert the following:
Ní theorannóidh fo-alt 3º den alt seo saoirse chun foirceannadh toirchis a chur ar fáil nó a fháil sa Stát chun cosaint a thabhairt ar bhaol réadach substaintiúil do bheatha nó do shláinte mná torraí ach sin faoi chuimsiú cibé coinníollacha a fhéadfar a leagan síos le dlí.
Subsection 3º of this section shall not limit freedom to provide or obtain, in the State, subject to such conditions as may be laid down by law, termination of a pregnancy in order to protect against a real and substantial risk to the life or health of a pregnant woman.".
Amendment No. 2 seeks to replace the Government's wording with a new formulation. We have just seen by way of vote that the Government insist they want to proceed with a referendum. I argued on section 1 that if we were to have a referendum it should be to delete Article 40.3.3º., the Eighth Amendment of the Constitution, and thereby revert to the pre-1983 situation and leave this House free to deal with the question of abortion in Ireland in a way the legislators, elected by the people, would find acceptable and would have to defend to their constituents at a future date. That approach has been rejected by the Minister on the basis that he regarded it as an academic approach. I fail to see how the Minister could define it as such, but it has been rejected.
In the absence of the Minister accepting that approach I and my colleagues in Democratic Left submit that the wording which the Minister is proposing should be deleted and substituted by the wording of our amendment. It is a positive expression of what might be done in the event of this House legislating for abortion.
The amendment states:
Subsection 3º of this section shall not limit freedom to provide or obtain, in the State, subject to such conditions as may be laid down by law, termination of a pregnancy in order to protect against a real and substantial risk to the life or health of a pregnant woman.
Our amendment would be in addition to Article 40.3.3º of the Constitution and should be read in tandem with the statement therein that the foetus and the woman carrying the foetus have an equal right to life. The Supreme Court has already defined that section of the Constitution as in certain circumstances giving the woman's right to life precedence over that of the foetus.
The wording I am suggesting eliminates the proposal by the Minister and his Government that anything outside the conditions proposed in his amendment would be unlawful and, therefore, a criminal act. In a later amendment we propose that the reference to unlawful should be deleted. To include this reference in the Constitution is quite an extraordinary approach not only to this issue but to our Constitution. Nowhere else in the Constitution do we declare anything to be unlawful. We leave it to the Houses of the Oireachtas to make laws and decide what is lawful and unlawful. The Constitution generally states principles on which our laws should be based.
I remind the House that approximately 5,000 women per year, or at least a large proportion of them, in effect would be criminalised as a result of the passing of the amendment as proposed by the Government. The majority of those who go to Britain, as I understand the analysis of the statistics, go there not because of a direct physical threat to their lives but for in my view other legitimate reasons. Nevertheless, they would be involved in a criminal act by having an abortion for reasons other than a direct physical threat to their lives if we adopt the Government's amendment. Our amendment also seeks to provide that the termination of pregnancy would be permissible in order to protect the life or the health of the woman.
I have no doubt that much of the remaining time in this debate will be devoted to discussing how the Government expect it might be possible that the life of a woman can be distinguished from her health; how a doctor may be expected to distinguish a life shortening threat to her life as distinct from an immediate physical threat to her life. Indeed, we have heard conflicting statements from Government spokespersons on whether the Government's amendment is intended to eliminate life shortening illnesses as distinct from an immediate threat to life. On the one hand a Minister told us that it excludes any possibility of a termination in a life shortening situation and provides for situations where there is an immediate threat to life while on the other hand others claim that it is intended to cover both situations and no woman will be refused treatment if her life or, as the Minister claimed, her health are at risk.
Our amendment seeks to broaden the capacity of this house to deal with this issue. We very clearly insist in our amendment that health should be included as the basis for a possible termination and that it is to protect against a real and substantial risk to the life or health of a pregnant woman. We also seek to delete the phrase "mother" from the proposed amendment. By accepting the term "mother" we willy-nilly accept the thesis that what a woman is carrying from the point of conception is a child. There are serious and widespread differences of opinion, even among Roman Catholic theologians, on this issue. On Sunday a Roman Catholic theologian pointed out on RTE that there is a grave question mark over this issue. I do not wish to delay the House on this issue but it is tendentious to continue to refer to a woman who has become pregnant and is carrying a foetus as a "mother"; without question, it literally accepts the theological argument that life begins at conception. This is only a theological argument; it is not a medical argument. There is no consistent medical opinion which says that life begins at conception. Who knows, but perhaps in five or ten years' time it may be proved or disproved.
The inclusion of the phrase "a real and substantial risk" to the health of the woman would also provide for situations where the psychological health of a woman would be at issue. I find it both insulting and difficult to understand how it is possible for the Government to argue on the one had that there is a separation between the life and health of the woman and on the other to go further and argue that her mental health is of no consequence; that a threat of self-destruction will be banned and giving any recognition to the threat of self-destruction arising from a crisis pregnancy must, under the Constitution, be ruled out. This seems to be stepping back 100 years to the time when mental illness was regarded as something evil and had nothing to do with the physical well being of a person. It is obvious to anyone, even a lay person like me, that one cannot distinguish between the physical and mental health of any person in society, that one impinges and works on the other.
Amendment No. 2 seeks to achieve a situation where people can give their verdict that they want the Dáil to legislate for abortion in certain circumstances where the life and health of a woman is at serious and substantial risk. It states that this should be done by way of legislation in the Dáil; it would be regulated by the Dáil. Given the particularly conservative make-up of this Dáil, which is likely to continue for the foreseeable future, it is highly unlikely we will have what the Minister seems to fear, abortion on demand. The fact is that the 1983 Amendment has been interpreted by our Supreme Court in a way which virtually no one anticipated by way of its effect on information and travel and the way it was defined in relation to suicide and the right to a termination.
As Deputy Dukes said earlier, it would be far more beneficial for the health of politics and democracy here if the Dáil were allowed to do the job it was elected to do, that is to legislate; for the Constitution to lay down the principles and for the Dáil to legislate rather than try to incorporate legislation into our Constitution which is extremely difficult to change for obvious reasons. In a curious way it would probably work more in the interests of the so-called pro-life groups if the Dáil were permitted to legislate in the way it clearly feels it should.
I do not want to unnecessarily take up the time of other Deputies in this short debate. The Minister has consistently attempted to portray the Government amendment as a so-called pro-life amendment. I know from statements he is reported to have made at press briefings and so on, that the Taoiseach has said this is not an abortion amendment. The fact is that the Government's briefing paper makes it very explicit that this is an abortion amendment. Although it has not yet been admitted by the Government I assume this briefing document which was given to the Leaders of the Opposition parties was drafted by the Attorney General. Perhaps the Minister could clarify that point. Under the heading "Supreme Court Decision in X Case" the briefing document states:
The effect of the Supreme Court decision is that an abortion is permissible in this jurisdiction where there is a real and substantial risk to the life, as distinct from the health, of the mother which can only be avoided by the termination of the pregnancy and that a risk of suicide may constitute a real and substantial risk to life.
That is a clear statement that the Supreme Court judgment provided for abortion, termination of a pregnancy. The briefing document goes on to refer to the effect of the proposed Government amendment. It states:
The amendment is proposed as an addition to Article 40.3.3º. The effect is to leave undisturbed the existing affirmative acknowledgment of the right to life of the unborn, with due regard to the equal right to life of the mother, contained in that Article.
The amendment accepts the test set out in the Supreme Court decision in every respect except suicide. It therefore, sets out to negative the decision in respect of suicide but in no other respect. The effect is that where a pregnant woman is suffering from a physical medical condition such that her life is endangered, the pregnancy may lawfully be terminated if that is necessary to save her life.
That is a very clear, explicit statement that what the Government are proposing is the legalisation of abortion in this State. The Minister should stop the nonsense of trying to claim that in some way this does not permit abortion. The Minister's briefing document states that it does.
I welcome the fact that the Minister is at last breaching the theological ramparts that have surrounded this issue for so long. We have been caught up in theological argument about when life begins, when abortion is direct or indirect and whether if indirect it can be called abortion and so on. We have an acceptance by the Government that abortion may take place in a specific circumstance. That is an advance. I should like the Government to go much further and to respect the health of the woman. I should like them to respect her mental health as much as her physical health, but their amendment refuses to respect her mental health. That is where I disagree with them.
It is a silly argument that what the Government are proposing is not abortion and what everybody else is proposing is abortion. The Government are proposing abortion. Let us get away from the nonsense that they are not and let us have a mature debate on how far we should go on that road. That is fundamentally what the debate is about. The Government say we should allow a legal abortion only where there is a substantial physical risk to the life of the mother. I say it should also include a serious and substantial risk to the health of the mother. I would argue also that where a woman or a young girl is pregnant as a result of rape or incest, that would be a serious case for allowing a legal termination of pregnancy.
I am not suggesting, as others have claimed that I am, that all a person should have to do is go to a doctor claiming to be suicidal and request an abortion. That is nonsense. What is at issue is whether we accept that there is a medical argument from psychologists. Every Deputy has received a briefing document from the Psychologists' Society of Ireland which goes into some detail in examining existing research. It raises the question in the same terms as the Attorney General's briefing. It is impossible to rule out the possibility that a woman's life may be at risk as a result of suicidal tendencies or in the longer term that her life may be at risk because her health is threatened or damaged by a pregnancy. I am not arguing that the case is made and accepted by everybody that suicide or health grounds are an absolute in terms of requiring a termination of pregnancy, but I object to the attempt to incorporate in our Constitution an absolute statement that under no circumstances will the health of a woman or suicidal tendencies be taken into account.
The Attorney General's briefing document states that even though the risk to life may occur in only a limited number of cases, we cannot rule out the possibility of its happening. We cannot rule out that suicide may result from a crisis pregnancy. We cannot rule out that a woman's quality of life may be destroyed as a result of a crisis pregnancy. We should not try to rule out these possibilities in our Constitution. That is why I am proposing the alternative wording in amendment No. 2 which would leave intact Article 40.3.3º but would qualify it by introducing some compassion. It would extract most of the piety and inject some pity into the whole problem of a woman who may be at risk as a result of pregnancy. I appeal to the Minister to approach this question in those terms rather than try to score political points against me or others by accusing us of wanting abortion on demand.
The Chair appreciates that there are many amendments before the House from the Opposition parties. Deputy Mac Giolla also has an amendment. I propose to call Deputy Bruton and then the spokes-person for the Labour Party. I then propose to call Deputy Mac Giolla.
I wish to discuss the amendments in my name which seek to remove the distinction in the Minister's proposed amendment to the Constitution between life and health. I have taken medical and legal advice on this point from people who would be very anxious to restrict abortion and who believe that a termination should only be available in life threatening situations. They nevertheless feel that inserting the words "as distinct from the health" creates a totally artificial tension between the two concepts, health and life. If the wording were left without the addition of these words, it would obviously remain the case that termination would have to be necessary to save the life of the mother. They do not understand why the provision as to health has to be inserted.
Doctors will have to start interpreting this new distinction in the Constitution and will have to look over their shoulders. If they are in an operating theatre, one of the people present might feel that the condition of the mother was health-threatening as distinct from life-threatening and the doctor might feel that he or she could be reported to some authority for giving treatment in those circumstances which would have the effect of terminating the life of the unborn. It is feared that this will introduce a legalistic atmosphere into clinical decisions by doctors in operating theatres and elsewhere. Who will be the losers? The women whose lives will be placed at risk.
In view of the increasing incidence of litigation and the costs of medical liability, doctors will tend when there is any doubt to take the most cautious course, which may not be the most efficacious course in regard to saving the life of the mother. While they would be able to argue afterwards that they did things to save the life of the mother they will not have done them as quickly or as effectively as they would have done, if they did not have to look over their shoulders in this way, because of this artificial distinction that is being introduced. By taking out the words "as distinct from the health" from this amendment one is not saying, although some would argue it, that health alone is a ground, because the words remain "such termination is necessary to save the life." I cannot understand why the Minister has taken this course. The argument he advanced in his Second Stage speech is unconvincing. The Minister basically concludes that if we take out the words "as distinct from the health" we will get an amendment which allows abortion on health grounds alone and that that would lead to abortion on demand. That is not true. There is no basis on which that can be read into the wording. If we take those words out the amendment will still read:
It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life 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.
Those words clearly very narrowly circumscribe the circumstances in which a termination can take place. There is no need for the insertion of those words "as distinct from the health" and all the Minister is doing is putting in the Constitution words that will create the impression that this House and the electorate if they approve of this, are unconcerned about women's health and that we regard this as a lower order concern. I know that will not be the legal meaning of the words, but the fact that those words are put in will create that sort of atmosphere. Let us remember that the Constitution is more than a legal document. It is also a statement of our values as a people. To put in this hairsplitting distinction between life and health in these circumstances shows that we went to enormous trouble to exclude certain possible health threatening conditions from being considered, because we want to make absolutely sure that there will be absolutely no doubt. Given what I understand the Minister wants to achieve, he is not going about it in the right way. The Minister is making a very serious poitical error in including these words, as well as everything else, because he is creating a situation in which many women and doctors will feel they cannot support this amendment because of the words "as distinct from the health" being included gratuitously and unnecessarily.
The Minister in his speech said it is suggested that in any medical condition there is a spectrum of gravity and that it is impossible to identify a precise point at which the risk changes from a risk to health to a risk to life. The Minister went on to say that he did not think this would arise in this case but he did not make any case to demonstrate that point. The Minister attempted to reply to this concern by saying:
I think that I can provide reassurance on this point. The intention of the amendment is that a risk to health unrelated to a risk to life is not sufficient to warrant termination of the life of the unborn. It is not the intention of the amendment to affect in any way the degree of probability of risk to life that is necessary to warrant treatment resulting in termination.
I do not say it is the intention but the Minister's intention is entirely irrelevant. It is the words that go into the Constitution and how they are interpreted by the Supreme Court perhaps in five or six years time that will count.
The Minister and many others had lots of intentions during 1983 and many people outside this house and inside it gave assurances in 1983 as to the meaning of certain words; and they made it abundantly clear that it was not the intention to interfere with the right to travel or to prevent the dissemination of information. All these intentions amounted to nothing because the Supreme Court interpreted the words differently. The Minister's language in his speech was extremely tentative where he said "I think that I can provide reassurance on this point. That is unbecoming modesty on the part of the Minister. The people are entitled to more than that. The Minister attempted to suggest that if the words "as distinct from the health" were taken out we could have terminations where there was no risk at all to the life of the mother. I cannot understand how the Minister could come to that conclusion when the words of the amendment say that it shall be unlawful to terminate the life of the unborn unless it is necessary to save the life of the mother. The Minister based his case on the Bourne case in England. I do not know if the Minister has read the judgment in that case.
That judgment was given in a criminal case where one cannot necessarily say that the judgment of the judge was the reason the jury came to their conclusion in the case. Mr. Justice McNaughton said on that occasion that if there is a doubt, any doubt as to the motivation of the person concerned, he was entitled to be acquitted. The case the Minister is trying to make is that the Bourne judgment would allow health alone to be a ground for a termination here. The Bourne judgment was uttered in a country where there is no written Constitution and where there is no custom of interpreting the Constitution. To suggest that the Irish Supreme Court might come to a similar conclusion to that in the Bourne judgment if these words were left out is fanciful in the extreme. In charging the jury Mr. Justice McNaughton said:
As I told you yesterday and as I tell you today the question that you have got to determine is not whether you are satisfied that he did it in good faith for the purposes of preserving the life of the girl. The question is whether the Crown have proved the negative of that.
In other words, that he did not do it in good faith for the purposes of preserving the life of the girl.
The important point to draw from that summing up of his judgment by Mr. Justice McNaughton was that the case was about whether the motive was to preserve the life of the girl, not the health. It was the life that was at stake in that case. I do not see how the Minister can draw a conclusion from this that it creates a ground for health alone being the judgment or for drawing any conclusions as to why the Bourne jury came to the decision they came to in that case or as to how that would apply in Ireland. I feel that the Bourne judgment is so ambiguous that it is not helpful and should not have been introduced into this discussion. We should be looking at the words that are in our Constitution as it stands.
I mentioned earlier that I would be particularly worried that the clinical decisions by doctors would become the subject of litigation. For example, a midwife involved in an operation might have very strong convictions and might feel that a doctor had acted on grounds of health preservation rather than life preservation, and might seek an injunction to prevent the carrying out of a particular operation. We might have a situation at a later date where a treatment given to save a mother's life which resulted in injury to but not termination of the life of an infant might lead to the infant or persons on his or her behalf suing the doctor who might be claimed to have acted to save the health and not the life of the mother. By introducing this distinction here, these sorts of issues will be contested on the strength of the wording in the Constitution.
I do not think that is the Minister's intention but I think it could be the result of this amendment. The Minister should very carefully reconsider the inclusion of those words "as distinct from the health" in the amendment. I do not believe he has proved to anybody's satisfaction that they are necessary. If he has doubts about the matter he could introduce accompanying legislation to make it very clear what he means by treatment necessary to protect life. There is no need to include the words "as distinct from the health" in the amendment. If the Minister wanted to achieve some measure of support for his approach he would have done that but it seems he has taken the view that because this is his starting position he is not willing to change or listen to any argument from any quarter. I feel very strongly that the Minister should take out these words "as distinct from the health". I do not feel any cause is being served other than causing gratuitous and unnecessary worry and hurt to women by the continued use of those words.
I understand that Deputy Taylor is giving way to Deputy Mac Giolla.
I refrained from intervening earlier because I understood the major debate would take place on the amendments. I am glad you have given me the opportunity of speaking now. Like everybody else, with the exception of Fianna Fáil, we in The Workers' Party also feel that this matter should have been dealt with by legislation. This was the feeling in 1983. A grave error was made in 1983 by putting in a totally unnecessary amendment to ban abortion which was already banned under the Offences Against the Person Act, 1861. This legislation was in need of amendment and updating, and that is the way this matter should have been dealt with.
In those years medical decisions were made by doctors on the basis of protecting patients as they have always done. Even before the 1983 amendment, where a pregnant woman had an illness the doctor recognised that under the Offences Against the Person Act, 1861, his first responsibility was to his patient, that is, to the woman rather than to the unborn child. The unborn child was of the utmost importance to the doctor and the woman as far as treatment was concerned, but must be secondary to the treatment of the patient for whom the doctor is responsible, that is the woman. Under the Hippocratic Oath doctors must protect the life of their patients. Despite the 1861 Act and the 1983 Amendment of the Constitution, doctors have continued to do that. Article 40.3.3º only gives equal right to the mother but doctors continued to give prior right to the mother, as they must. The so called pro-life people who forced through the 1983 Amendment with the help of the bishops know this is the case and they agree with it. They said specifically that they do agree with it. They know that the woman is given prior right and yet they forced through an amendment giving her only equal right with the foetus.
The medical profession are now in an impossible position where they have neither legislative nor constitutional support or backing for their actions in saving lives. They are the real pro-life people, the only pro-life people in this business. The so-called pro-lifers salve their consciences by pretending that ending the life of the foetus to save the life of the mother is not abortion. That is fine, and nice and cosy for them but where does it leave the doctor? It has no legal standing and therefore the medical profession have no legal protection for their actions.
The words in the current constitutional amendment, particularly the words "as distinct from the health" put doctors in an even more impossible position. They are dedicated to protecting the health of their patients and in many cases they would find it very difficult if not impossible to say that where health is seriously affected the life of the patient is not at risk. How can they say in cases where health is seriously affected that the life is not at risk? This wording will leave doctors even more open to possible court actions either for not taking action to save the woman's health or for taking acton to save the woman's health which endangered or damaged the health or life of the foetus.
Whatever wording is decided in this amendment, legislation will still have to be brought forward to put the legislators' interpretation on the constitutional amendment and I think this was made clear by the Supreme Court. When the Taoiseach advised me of the wording being put forward he told me that if the wording were defeated in a refendum he would deal with this by legislation. I was delighted when I heard that and I said as much to him because now there would be a choice. If one did not vote for the referendum there would be legislation. People see that as a big stick held over the pro-lifers; perhaps it is but I still think that it is a good idea and hope that this will be explained to voters.
The question that must be asked is, where will we stand if the amendment is passed. If there is one lesson that we have learned it is that the wording that will be put before the people should be as simple and as straightforward as possible. That is the reason the amendment in my name has been formulated in simple terms. We have not included the word "unborn" because it is meaningless — an unborn what? One could not perform an abortion on a cat. Neither have we included the word "mother" which is equally dodgy and dangerous because it only covers women who already have one or more children. It does not cover women who are not mothers or indeed who may not be mothers following an operation to save their lives. They may then be incapable of having a child. The inclusion of ridiculous words such as "unborn" and "mother" leads to the creation of enormous legal difficulties.
What I have tried to do on behalf of The Workers' Party is outline the grounds on which it should be lawful to terminate a pregnancy. We make no mention of the word "unborn" but rather make a positive declaration in which we state that it should be "lawful to terminate a pregnancy where there is a threat to a woman's life or health and in the case of a pregnancy resulting from rape or incest." That is both simple and clear.
No man — and I have spoken to women about this matter — can understand the effect rape or incest has on a woman's mental attitude and feeling about herself. It affects them not only mentally but also physically in that they have a feeling that they are unclean and that their womanhood has been destroyed. No man can understand these feelings and given what I have been told in relation to the effect rape and incest have on some, if not all, women they must have a choice.
That is the reason we say the Government should outline the grounds clearly in the amendment because every comma is open to a legal interpretation. However, I presume it is too late to do anything about this matter now, having regard to the fact that two special Cabinet meetings have been held to agree on the wording to be put to the electorate and that we are wasting our time debating the matter. Fianna Fáil have had their wording accepted and they are going to push the Progressive Democrats to come in behind them on it. Even though it may be foolish to propose a wording, our amendment points to where we stand on the issue, and I am strongly of the view that we should be specific.
I should point out that even if the wording I have suggested was accepted we would still need legislation which would stipulate the period — say, 12 weeks or 16 weeks — within which it would be unlawful to terminate a pregnancy. Yet, when I asked if the Government's wording is passed would that be the end of the matter, the Taoiseach replied that it would. They are going to leave the matter hanging in mid air again, despite what the Supreme Court had to say, that the legislators had done nothing since 1983 when an amendment which was open to all sorts of interpretations was inserted into the Constitution. No attempt was made to introduce legislation to give effect to that amendment. It is absolutely essential, if the amendment is passed, that legislation be introduced.
The Workers' Party will be opposing the amendment mainly on the grounds that this is not the way to proceed. We believe that the matter should be dealt with by way of legislation. We intend to oppose the amendment to ensure that it is dealt with in this way. I am aware that we would then have another battle on our hands as to the legislation that should be introduced by the Government but that is the way we should proceed given that it would be open to any future Government to amend that legislation without the need to hold a referendum.
Mr. Taylor rose.
Shall I call the Minister?
I would be quite happy to give way to Deputy Taylor as he has been offering for some time but perhaps after that I should respond, otherwise I may not have an opportunity to contribute given the way things are shaping up.
The Minister might even make a dramatic and very important statement.
Perhaps the Minister might even agree with us.
Let me respond to some of the points raised. In relation to amendment No. 2 in the name of Deputy De Rossa, this would introduce abortion on all grounds where there is a substantial risk to the life or health of the mother. Clearly, this would lead to abortion on demand. This is what happened both in England and other jurisdictions.
No, it would not. I must object to that total distortion of what Deputy De Rossa and my party are seeking to do. I ask the Minister to address this issue without seeking to disparage meaningful contributions which have been made in this House.
I am sure Deputy McCartan appreciates that later on he will be called and will have an opportunity to contribute. I hope he will not be interrupted; at least, if I am here, he will not be.
This is unacceptable to the Government and I am quite sure to the vast majority of the people. As I have explained time and again, the Government are not in the business of introducing abortion; this is a pro-life amendment. What we are doing is reducing the number of grounds, under the law since the X case, on which a pregnancy may be terminated. What the amendment is seeking to do is to turn that back, and we have consistently said this. It must also be borne in mind — and Deputy De Rossa should appreciate this — that existing medical practice will continue.
The Supreme Court test, which has been quoted by Members on all sides of the House since the debate started, is straightforward, and indeed, has already been interpreted by the Supreme Court. Consequently, there is no need at this time to pursue the question of further legislation because the interpretation is already in place. Today, under the law of the land, suicide or self-destruction is a ground on which a pregnancy may be terminated. What we are asking is that this be ruled out. We have been asked why on a number of occasions by Deputies McCartan, De Rossa and others. We have said it is a totally unsatisfactory criterion, that it is uncontrollable and defies regulation. I am advised that there are no scientific means to establish whether a woman is suicidal.
In present circumstances the law states, in so far as the Supreme Court judgment is concerned, that termination of pregnancy, abortion, is available here as long as the test is satisfied. One of the grounds for the test is that a pregnant mother is suicidal. We disagree with that and have been stating that quite clearly for some time.
The people voted for that in 1983.
When talking about suicide I might refer Deputies to a letter written by a Maura Ó Riordan which appeared inThe Irish Times of Saturday, 24 October 1992 which read:
With reference to Dr. Anthony Clare's article on abortion and suicide — October 17th — it may be of interest that Dr. David Owen, the former leader of the SDP in Britain, boasts in his autobiography,Time to Declare, that he personally advised women to threaten suicide in order to obtain an abortion.
It is that kind of thing I was bringing to the notice of the House which leads us to believe that there would be those who would seek to use the suicidal element as a means of securing an abortion. It is to stop that possibility that the amendment has been framed in that we believe — and we believe a majority in the House believe — the people do not wish to see suicide as a ground for an abortion.
The writer did not mention the rest of Dr. Anthony Clare's statistical/scientific article.
What is the Fine Gael position on this? Would they speak in one voice?
The Minister of State should apply that to his own party.
I am only stating a point made there.
We are testing the Minister's accuracy; foolish political jousts will do no good at all.
I am merely referring to something that appeared in a national newspaper that is worthy of mention.
Bearing in mind the Minister of State's record on this he should be very quite or reticent.
Deputy Shatter is on record and it condemns him.
I might refer to amendments Nos. 9 and 10 on which Deputy John Bruton made some comments. Those amendments refer to the deletion of the phrase "as distinct from the health". I am opposing those amendments. In proposing them Deputies raised various points. On occasion they referred to the innate offensiveness of the phrase "as distinct from the health" and claimed that the use of that term also could 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 that there is some strength of feeling in that regard, many of the comments made suggesting that the inclusion of the phrase could have adverse unintended effects are without foundation.
It has been suggested that a line cannot be drawn unambiguously between "life" and "health" and that this will give rise to difficulties. I have to point out, of course, that the Supreme Court has already drawn that line and had no difficulty in so doing. The essence of the Supreme Court judgment is that such a line must be drawn on the proper interpretation of Article 40.3.3º. 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 would die.
The Twelfth Amendment would not make any change to the constitutional test on this point, as it has been interpreted by the Supreme Court up to now, but rather would establish that interpretation as something which could not be changed at any time in the future without the consent of the people.
In addition, in the debate on the Bill, a view was expressed 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 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.
One judge only expressly made that distinction and the Minister has been obfuscating that——
Did the Deputy read Mr. Justice Hederman's judgment?
Is the Minister listening to women?
The distinction between life and——
I listen to everyone who makes sense.
We should all now listen to the Minister who is the only person in possession.
The distinction between the life and health was included in the general test laid down by the Chief Justice, which has been acknowledged by Deputy FitzGerald. It is clear that the distinction was accepted by the other judges and was inherent in what they had to say.
It seems that a test of whether action is necessary to save the life of the mother is straightforward and, in practice, should not give rise to difficulty. This test, as laid down, has existed explicitly since the decision was given in the X case. Indeed, prior to the publication of the Twelfth Amendment of the Constitution Bill I heard no suggestions about any possible difficulties in the operation of that test. I agree it has arisen since we came in here but, before that, there had been no reference, no complaints, no difficulties suggested that might exist in so far as the application of the test was concerned.
There has not been a queue of suicidal women since then either.
I accept that. Indeed the phrase reflects the Supreme Court decision in so far as it provides that the risk must be to the life of the mother in the sense that, unless the risk is avoided, she would die. The phrase is taken from the Chief Justice's judgment but it is clear that the other judges also had in mind a risk to life rather than a risk to health. The reality which we cannot ignore is that in other jurisdictions a risk of damage to health is the ground which has led to widescale abortion on demand; nobody is denying that. It was in order to prevent such circumstances developing here that the phrase has been included in the amendment.
Some doctors have expressed concern that the inclusion of the phrase could have the effect of restricting a certain flexibility which, under current medical, practice, doctors are permitted to exercise in the best interests of their patients. It is suggested that in any medical condition there is a spectrum of gravity, to which Deputy Bruton quite rightly referred. It is impossible to identify a precise point at which the risk changes from a risk to health to a risk of life. The concern of the doctors involved seemed to be that the wording may result in their being forced to have a greater degree of certainly about the risk to the mother's life before providing treatment which may result in the loss of the foetus, whereas normal medical practice cannot operate on the basis of certainty but rather on the basis of probability only. That is the key phrase.
When I used the words before "I think"— of which Deputy Bruton reminded me — the manner in which I used them was by way of reassuring Members. It is a mode of language the meaning of which is well known to Deputy Bruton. It is not the intention of the amendment to affect in any way the degree of probability of risk to life that is necessary to warrant treatment resulting in termination. In the X case the Supreme Court laid down the test as being a real and substantial risk to the mother's life arising as a matter of probability. There is nothing in the proposed wording that would change that.
I want to allay fears, expressed by some, that the use of the words "as distinct from the health" in the amendment might result in pregnant women being denied necessary medical treatment to protect their health. There is no basis for that fear and people should not express that fear.
It has not yet been tested.
Under the amendment women will continue to receive all necessary medical treatment to protect their health. Current medical practice in this regard will not be affected. Under current medical practice the question of termination of pregnancy arises only where there is a threat to the mother's life. After all the amendment does no more than adopt the test laid down in this regard by the Supreme Court in the X case. There has been no suggestion that medical practice regarding necessary treatment to protect woman's health has been affected in any way since that decision.
The suggestion that the words "as distinct from the health" should be omitted from the proposed amendment really boils down to this, that it should be possible to terminate the life of an unborn child where there is no risk to the life of the mother. Let there be no doubt about that. The amendment as it stands will allow all necessary treatment to be provided for an expectant mother in all circumstances where her life is at risk even if that would result in the loss of the life of her unborn child.
Can the Minister specifically guarantee that?
There is no basis whatever for the suggestion that the amendment we are proposing today will leave a woman without protection in any situation where her life is endangered. The clear intent of the amendment and the clear meaning of the words used in it is that medical intervention will be allowed in all situations where it is necessary to save the mother's life because of a life-threatening physical, medical condition. If the Government saw any way of omitting the words "as distinct from the health" without giving rise to the real danger that it might eventually lead to abortion on demand we would have left them out.
That is arrant nonsense.
It can be argued that a reference to life on its own should be sufficient on the basis that life means life and not health and that the reference to life in the existing Article 40.3.3º has been interpreted by the Supreme Court in the X case as not including health. However, the words "as distinct from the health" formed part of the test enunciated by the Chief Justice in that case. If those words were to be omitted now from a constitutional provision which reproduces the essence of that test, significance might well be read into that omission. In a future hard case health unrelated to a life-threatening condition, might be found to be a good ground for abortion, as happened in another jurisdiction, the result of which we are all familiar with.
If that is the legal advice the Minister is getting he should change his legal adviser.
Health, unrelated to a threat to life, has never been a ground for medical intervention where it is foreseen and therefore intended that the death of the unborn child would result. Unforeseen death of the foetus in the course of a medical intervention to protect the mother's life or her health, where all due care is taken to preserve the life of the foetus, is of course an entirely different matter and is not prohibited by law. What the proposed Twelfth Amendment of the Constitution seeks to do is to maintain a just and proper balance between the right to life of the mother and the right to life of the unborn child.
And a mistrust of women.
Deputy Bruton spoke about the word "intention", and I have sought to put into context exactly what that means. The Deputy must remember that the intention is important as long as the words support it and are interpreted as the correct words to satisfy that intention, and that is what is done here.
We all like to get the opportunity to quote from people of consequence in these matters. I took some comfort from the letter inthe Irish Press of 26 October under the names of Patricia Casey, Professor of Psychiatry in UCD, Cornelius O'Leary, Professor of Political Science——
And Mary McAleese.
Yes, and Mary McAleese.
After the Minister's humiliation he is trying to get back in favour.
We are discussing a very serious subject and everybody will have an opportunity of making a contribution.
We will not.
We will not have an opportunity to contribute.
I want to make sure there are no further interruptions. The Minister has a right to reply to questions without interruption.
The Deputy is safer up there than he is down here.
I am quite sure that if I wished to take up the time of the House it would be simple for me to read into the record, with some justification, the letter of these people, but I am not going to do that. I am simply referring Deputies to that letter.
Ministers are on record since 1983——
It is there, word for word.
Is it not interesting——
For the Deputy, as one——
The Minister should speak for himself.
——and for many of his colleagues also. I will refer to the opening sentence of that letter in which these people said they welcome and support the forthcoming referendum on the substantive law on abortion and hope that all those who are pro-life will feel as they do and vote yes. The rest of the letter will be read no doubt by people individually. The letter contains some very interesting points and refers specifically to all the points that have been referred to by various Deputies.
The Minister should tell us what the Attorney General told him in regard to this proposal and the need for legislation. As the Minister is quoting from authority, he should tell us what the primary law officer of the country told him.
The Minister is in order. There should be no interruptions.
If the Minister wishes to quote from newspapers he should tell us the Attorney General's advice to Government in regard to this proposal.
I have already replied to the Deputy; the Minister is in order. There should be no further interruptions.
On a point of order——
Deputy McCartan on occasion likes to raise his voice in pursuance of certain aspects of this matter.
On a point of order, may I ask if it is within your powers, a Chathaoirligh, to grant to other Deputies the opportunity of speaking? As one of the women in the House, I would be very interested in making a contribution, but I do not think that will be possible.
I am not responsible for the length of contributions made by Deputies and Ministers.
In fairness to Deputy Fennell, I hope she will have an opportunity to contribute. I would point out to the Deputy that I sat here for most of the day without contributing. I did not contribute to section 1 until people badgered me into doing so. As I said, I am very happy to contribute, and this is my first contribution since the first vote was taken. I have no problem in allowing all Deputies to make Second Stage speeches again on all these issues, but I do not want anybody to say that I did not respond to them. For that reason I am taking a little extra time, but I promise to be as quick as I can.
I was pleased to hear Deputy Mac Giolla's comment that he understands the reason the Government say that if the amendment is not endorsed on 3 December there will be need for legislation. While others may think that is some kind of threat, that is not the intention but it is the reasonable thing to do. Deputy Mac Giolla summed up the matter neatly when he asked what else would one do.
I would take issue with Deputy Mac Giolla in that he saw no reference to "mother". This is one of the points raised by many people but they seem to forget that what is involved is not 55 words, as was continually referred to by Deputy Bruton, but 133 words, the number of words in Article 40.3.3º together with the 55 words — I take for granted Deputy Bruton's numerical ability on that matter.
There are too many words.
It took 6,000 words to control dogs.
Deputy Mac Giolla missed the point that "mother" is referred to in Article 40.3.3º.
That does not make it right.
As the Deputy suggested, it is not referred to here. The Deputy also made the point that he does not favour an amendment at all, but that matter was disposed of this afternoon. The vast majority of people wish — and that wish has been realised — that there will be a referendum on this matter so that we will get it out of the way once and for all. Some people may ask why we are holding three referenda, but all the party leaders signed up for this.
That is incorrect.
All the party leaders signed up that referenda would be held before the autumn or in the autumn — I cannot remember the exact terminology——
On travel and information.
Yes, on travel and information.
On a point of order, if the Minister wants to refer to an agreement between party leaders he should make sure his reference is correct. The record of this House shows clearly what the party leaders signed up for, and it is not what the Minister is trying to imply.
I do not think that is a point of order, Deputy.
I was only making the point that the party leaders agreed that there would be a referendum on travel and information and that the substantive issue would be dealt with by a referendum and/or legislation in the autumn. The Government have honoured that commitment, which people should recognise.
I should like to discuss amendments Nos. 3 and 12 as they are being taken with amendment No. 2. They deal with existing medical practice. Doctors may feel that, in some way, the inclusion of the phrase "as distinct from the health" in the Government 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 and which can only proceed on the basis of probability. I have explained previously to the House 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 — there is nothing in the amendment which would change that.
The phrase "necessary to save the life" does not mean that the risk to life must be imminent or immediate before action to terminate the pregnancy will be permitted. In this context cases of cardiac conditions or treatment involving chemotherapy in the early stages of pregnancy are mentioned; the test enunciated by the Supreme Court does not require that the risk to life must be immediate. The court specifically rejected that proposition, neither does the wording of the proposed amendment require that the risk to life should be immediate. I am advised that the phrase "necessary to save the life" means that the pregnancy could be terminated if the doctors were able to form the view that, even after childbirth and recovery of the mother, other treatment, for whatever condition from which she was suffering, would be ineffective to protect her life.
There have been suggestions that the Bill will render unlawful medical treatment for mothers where that treatment is for the benefit of their health as opposed to saving their lives. The Bill is not changing the law in this respect, it adopts the existing law as set out by the Supreme Court and nobody has ever suggested, as far as I know, that the Supreme Court decision has given rise to the consequences which 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 feotus but that medical treatment is permitted where the life of the mother is at risk and the loss of 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.
Matters like this raised in the debate have implications not only for the general public but for the medical profession. It is clear that medical care of women and the provision of that care when life is at risk should remain to the fore of the debate. The medical profession are called upon to deal with issues of life and death with the complex legal and treatment considerations of patients under their care. Individual doctors will be at the forefront of the decision making process implicit in the issues raised by the referendum on the substantive issue. It is not the referendum which brings this about, it is a fact of medical life.
Every day the medical profession provide expert medical and surgical care for pregnant women regardless of the medical complexities, rarity of diagnosis or the trauma which, in exceptional individual cases, may arise. It is necessary to reassure people generally — and women in particular — that that caring and expertise will remain fully available in our health services, regardless of the outcome of the referenda. It should be stressed that such treatment and care have been the hallmark of our health services for many years. It should be clearly acknowledged that the medical profession are obviously to the fore in deciding on matters that are the essence of life and death.
On a point of order, I do not want to interrupt the Minister. However, we are debating Committee Stage and some Members have made relatively lengthy contributions. Is it in order for the Minister to read from a prepared script? It is not normal on Committee Stage.
That is not a point of order.
I am just finishing a contribution which I thought necessary to put on the record. This has been appreciated by many of Deputy Shatter's colleagues. The exact position should be stated clearly and unambiguously on the record——
As the Minister understands it?
With the same level of certainty which applied in 1983?
With as much certainty as I can muster.
It is like an action replay.
It should be clearly acknowledged that the medical profession are obviously to the fore in deciding matters which are the essence of life and death and that reliance on the profession has been well placed as evidenced by the high national — and international — reputation of our obstretric and by gynaecological services in particular. This faith is clearly shared by the general public and must be safeguarded at all costs during the referenda debate. That is an important element. This has been a major element of the contribution to the debate of the Minister for Health in the House and outside it.
I know my contribution was long but, in fairness to those who made decent contributions in the House, the least I could do was to acknowledge that and respond in kind by giving a good, clear outline in as precise terms as possible.
I have listened carefully to the Minister during all stages of this debate and indeed prior to the Second Stage debate. Will he admit that he might be wrong this time as well? The Minister prefaced his remarks by saying he was "advised". Needless to say, he is being advised by a broad range of people on this occasion but I am sure he was also advised in 1983 when he got it miserably wrong. The people at least deserve an apology in that respect because of what the Minister said throughout that debate. Indeed, I questioned his motives on that occasion.
The Minister referred to the medical profession; with all due respect, he is doing a great disservice to the medical profession and if he had the respect for them which he claims to have he would not go about the amendment in this way because he will cause more problems for the medical profession. Problems were caused by the Minister for Health and the Taoiseach in their first attempts to explain what the Minister for Justice was trying to do, consequently confusion was rampant.
The Minister will not allay the fears expressed by myself and others that certain medical treatments which are available at present will not be available after the amendment is passed — if it is passed, which is doubtful. There might have been some possibility of allaying those fears if legislation had been enacted. I am at a loss to understand, after the Minister's last contribution, why the Government are reluctant to introduce legislation now that it is an option. However, the Minister will introduce it without any difficulty if he is defeated on 3 December. If it does not cause any problems to introduce it the second time round, why not do it properly and try to avoid some of the consequences of the awful mess we got into since 1983?
Judging by the conduct of the Taoiseach in Dublin Castle today, it appears that we are looking down the barrel of a gun in relation to a general election and I hope that courageous people will hold on to their nerve in the face of that election because, if we find ourselves on platforms within a matter of weeks, I trust the Minister for Justice will still stick to some aspects of his Second Stage speech which are a major advance on his previously adopted position. In that speech he said: "under the amendment, where a pregnant woman is suffering from a physical medical condition such that her life is in danger if the pregnancy continues, the pregnancy may be lawfully terminated if that is necessary to save her life". I trust that the Minister for Health will explain that sentence to many of his colleagues, male and female, who supported him on Thursday last because, if a general election is declared, as seems likely, and if Cabinet confidentiality and collective responsibility mean anything, then I suspect that many of the Minister's——
Is there something I should know about?
The Minister may want to read the newspapers. To answer that question quite bluntly, it is my opinion that the whole notion of collective responsibility has been thrown out the window in the context of the Taoiseach's remarks at the Beef Tribunal today.
When did this happen?
That is something the Minister can catch up on. I trust that Government Deputies will stick to the sentence I have just read out, from the Minister's Second Stage speech because from comments I have read in the press today it would appear that some of them neither understand it nor want to understand it and certainly do not want to support it. That sentence results from the advice of the Attorney General or at least that part of his advice that the Minister obviously accepted. Unfortunately, as was demonstrated when the Minister set out to explain the words in the context of the amendments put down in my name and in the name of Deputy Howlin, practically every word in the Minister's amendment to the Constitution is loaded with potential meaning. We might have had some opportunity to clarify the meaning if we were dealing with legislation. One thing is obvious: the statements of Government intent, even if they were clear and not as confused as they have been, are meaningless because it will be the Supreme Court who will again in due course — I would say it will not take another ten years, because I am sure these words will be tested before then — who will be asked to interpret the meaning of the amendment. The words and phrases that I do not think the Committee will have resolved by 6.45 p.m. this evening are, "necessary", "save", "as distinct from the health", "disorder", and "not being a risk of self-destruction". The potential meaning and the consequence of each of those both individually and taken together will, I believe, place many women at risk. I have not heard anything in the House this afternoon to allay those fears.
The use of the term "save the life", could, as I said in my Second Stage contribution be much better phrased as "protect the life". Somebody's life could be protected from the probability of a medical emergency in the future as opposed to protecting somebody's life from the consequences of that emergency, a distinction the Minister seems to have difficulty in accepting. Apart altogether from the offensiveness of the term "as distinct from the health" in its implying that the health of women is not an area of concern to the Members of the House, and that what we are having is a reflection of a debate that took place in this country about 40 years ago——
That is most unfair.
It is, Minister, but unfortunately, you did not say anything either in your Second Stage contribution or today that might allay those fears, as the women of Ireland will, I expect, demonstrate on 3 December.
Thankfully, that view is not shared by the Leader of the Fine Gael Party.
On 3 December the women of Ireland will demonstrate that they consider the wording to be an insult to their health.
If the Minister has the opportunity to reply to this debate, perhaps he will say on what basis he was advised — he used the words "I am advised"— in relation to the operations which we believe may be ruled out as a result of the use of the term "as distinct from the health", operations that would be perfectly legal now if they were necessary to save the health as distinct from the life of a woman. Could the Minister give examples to which that advice relates? I think it is only if we have the concrete examples that we can know what we are talking about.
The phrase "is necessary to save the life", as distinct from saving the health, of the mother is also a matter of concern. After the Minister's previous contribution, I foresee that there will be grey areas and these areas will have to be dealt with by the medical profession when it is our responsibility to clarify what is meant.
The use of the word "disorder" does not include psychological and psychiatric disorders. Reference to that word in the explanatory memorandum circulated by the Government states that it is necessary to include ectopic pregnancies but it is unfortunate that it rules out — and the Minister persists in this exclusion — all forms of psychological and psychiatric disorders. I believe that to be an absolute insult to the advances that have been made in those areas of medicine in the past years. Again, that is an element the Government will have to examine.
The unfortunate aspect is that the Minister seems to have made up his mind.
I consider the Taoiseach's manner in offering the people this amendment which the majority of Members in the House consider to be unsatisfactory, and the manner in which he referred to legislation, to be a threat to the Irish people. What the Taoiseach is saying is that we can deal with absolutes in an extremely complex area. This is not a black and white issue. Unfortunately, we will not have the matter ironed out. The medical profession will carry the brunt of the lack of responsibility shown in this House on this occasion and, unfortunately, whether we like it or not, we will be back in the House legislating one way or the other within a very short period.
I call on Deputy Nuala Fennell.
Was the Deputy a member of the Government in 1983?
I clarified my position before the election, not like other leaders who got us into this mess.
It is extraordinary that the Deputy can keep referring back to 1983 and the previous amendment to the Constitution when he was a member of the then Government.
I hold my party's brief at this stage.
I call on Deputy Shatter.
As a proposer of the amendment the Committee are now debating, I have no difficulty in giving way to Deputy Fennell but——
I am sorry, but——
As far as possible, Deputy, I shall try to move the debate around the House. I am now calling on Deputy Shatter.
I am sorry, Sir, but you did call me earlier.
Deputy Shatter says he is holding the brief so he does have priority.
Could you assure me——
Will Deputies please make up their minds?
I assure the Deputy that she will have plenty of opportunity to contribute.
Will the call go back to the other side of the House after Deputy Shatter has spoken?
It will go back to the other Opposition Party——
I should like to have the opportunity to contribute.
And I wish to speak also.
——because the Minister will then reply to several questions. I understand that Deputy Shatter will give Deputy Fennell an opportunity. The Deputy complained——
I have no objection——
I shall try to facilitate as many Deputies as possible.
I do realise that everybody has a sincere contribution to make but——
I do not want to become involved in a dispute between two Deputies from the same party.
——I should like to think that both my colleague, Deputy Monica Barnes, and myself, who have 25 years experience of working with women, would get a chance to talk about this issue in Dáil Éireann, as we were elected to do.
Could I just say one word before Deputy Shatter starts his contribution? There were other Deputies from this side of the House who would have liked to contribute on the issue. Some of them came to ask if they might do so and I requested that, if they could, they refrain from contributing. Quite a number of Government backbencher Members would have liked to contribute at this stage——
Please, Minister. I have called Deputy Shatter. I think the Deputy should be as brief as possible and come to the point quickly.
I have not yet had an opportunity to talk on the Committee Stage in relation to the amendments that are being dealt with. I should like to deal with certain aspects of the amendments.
The Minister constantly makes an inaccurate statement — one with which Minister O'Dea, who briefly visited the Chamber this evening, seemed to agree — that the formula now presented to us derives directly from what the Supreme Court decided. The Minister correctly states that the Chief Justice made the distinction in his judgment when he referred to the life as distinct from the health of a woman. The Minister then takes unto himself insights of de Valeran proportion when he attempts to look into his heart to discover what was in the minds of the other four members of the Supreme Court, none of whom sought to make that distinction. It is an outrageous inaccuracy for the Minister to justify what is an appalling distinction in this wording — a distinction that is justifiably causing a great deal of concern to women, a distinction that should not be in a Constitution — by stating constantly that he is reflecting what is stated by the Supreme Court, because in the context of the majority judgments none of the judges with the exception of the Chief Justice made such distinction or felt that there was need to make such distinction. To state that to remove the words "as distinct from the health" from the amendment would in some way provide an open door to abortion on demand is such a gross misrepresentation as to be unworthy of the Minister, though it is worthy of the kind of approach we had from him in 1983.
In deference to colleagues who want to make a contribution, I do not want to delay the House by repeating the quotations from the judgments of Mr. Justice O'Flaherty, Mr. Justice Egan and Mr. Justice McCarthy which I put on the record of the House during the Second Stage debate. Suffice it to say that not one of those judges felt the need to make that distinction. What the Government are attempting to do is to insert a distinction into our Constitution which is, in legal terms, anobiter dicta of the Chief Justice, which was irrelevant to the decision that was reached because there was no question in that case other than that the mother's life was at risk and that issue was not teased out.
In this context it should be said that we have a great deal of worry that what the Government are trying to achieve in this amendment is something the Attorney General unsuccessfully attempted to achieve in the Supreme Court. Deputy Bruton, and other Deputies, correctly pointed out that a number of the words contained in this Article — if the Minister is trying to rely on the Chief Justice — do not arise in the judgment of the Chief Justice. Nowhere in his judgment did the Chief Justice talk about a necessity to save the life of the mother. The words "save the life" do not appear in the judgment of the Chief Justice. Indeed, one has a great deal of worry as to why that phrase is used.
Deputy Spring correctly asked whether, for the mother who does not require immediate medical treatment to save her life and it is only something that may be required in the long term, it will be available. The Minister is giving us assurances and telling us of his intentions on this, that and the other but, of course, the intentions of the Minister are irrelevant, it is what is in the wording that is important. It is worth referring to one passage in the judgment of the Chief Justice which has not been referred to in this debate. On page 32 he referred to the need for a harmonious interpretation of the Constitution and the necessity that it be carried out with concepts of prudence, justice and charity, to which my colleague Deputy Noonan referred earlier. He went on to say:
It leads me to the conclusion that in vindicating and defending as far as practicable the right of the unborn to life but at the same time giving due regard to the right of the mother to life, that the Court must, amongst the matters to be so regarded, concern itself with the position of the mother within a family group, with persons on whom she is dependent, with, in other instances, persons who are dependent upon her and her interaction with other citizens and members of society in the areas in which her activities occur.
In other words, in determining issues relating to the life of the mother the Chief Justice said a broad number of matters must be dealt with and addressed. These have not been explained. Neither the Minister nor the Attorney General in his statement explained how this portion of the judgment of the Chief Justice fits into the proposal we now have. What is interesting is the following reference by the Chief Justice to the Attorney General's submission:
Having regard to that conclusion, I am satisfied that the test proposed on behalf of the Attorney General that the life of the unborn could only be terminated if it were established that an inevitable or immediate risk to the life of the mother existed, for the avoidance of which a termination of the pregnancy was necessary, insufficiently vindicates the mother's right to life.
In other words, the Attorney General, on behalf of the Government, in the Supreme Court and in the High Court stated that for there to be a medical intervention to terminate a pregnancy there was a need for an immediate risk to the life of the mother. I wonder whether what the Attorney General could not achieve in the Supreme Court he is now attempting to achieve in the wording before us now in this House.
The Deputy omitted the word "inevitable" for the second time.
The words "inevitable or immediate" were used in the Attorney General's submission. Both Fine Gael and the Labour Party have tabled amendments seeking to remove the words "save the life" and to replace them with the words "protect the life of the mother". I query very seriously why the words "save the life" are in this amendment. Presumably this amendment was sent by the Attorney General's office to the office of the Minister for Justice, was discussed within the Cabinet group that sought to reach a decision on this issue and then presented to us. I have very serious reservations as to whether this wording will allow medical intervention to take place in circumstances where there is a long term as opposed to a short term risk to the life of the mother.
Inevitable is not immediate.
Let no one say this is not a real problem because as recently as 28 September 1992 the story of the late wife of one Brendan Hodges appeared inThe Irish Times detailing how during her period of pregnancy she suffered a reactive tumour in her back, having previously suffered cancer, and how medical treatment was delayed until it was too late. This woman lost her life and the life of her baby was lost also. That is a real example of a situation that can arise where medical doctors are confused as to whether they should intervene because of provisions in our Constitution. I understand that case is heading towards the courts but no one has objected to the article in The Irish Times.
Our case is that we cannot be absolutist about this. When the Minister gives assurances in the absolutist manner in which he has done this evening, he is replicating what happened in 1983. What we can properly and validly say is that this wording is open to disparate interpretations which can give rise to confusion. The distinction in relation to health as contained in this could result in treatments which women require more quickly being delayed; it could result in debates within the medical profession that are not concerned with saving the life of a woman but rather with whether doctors will be subject to court injunctions or constitutional actions.
Inevitable is not immediate.
This is not an interpretation. Obviously we are raising an issue that is of real concern to the Minister for Health because this is not some esoteric interpretation of these events that is confined to this side of the House. I should like to refer to one passage only from the speech by the Minister for Industry and Commerce, Deputy O'Malley — a passage to which I did not refer earlier — which states:
Another major concern about the proposed Amendment wording is the distinction to be drawn in the Constitution between "life" and "health". This could take away from doctors, from the courts and from this House any right to deal with those hard cases which will arise.
No one can really know whether a pregnancy which will, as a matter of probability, drastically shorten and devastate a woman's life, be permitted to be terminated under this proposal. It seems to me that the wording is calculated to try to distinguish between life shortening and life threatening pregnancies and to exclude completely "life-shortening" risks as a ground for termination.
That was said by a Minister who was privy to the advice of the Attorney General and who, presumably, participated in the Cabinet sub-committee. Unfortunately, he is absent from today's debate. It is worth repeating, that the Progressive Democrats were founded on the basis of standing by the Republic; on this issue it seems to me they are bystanders in the Republic.
This is a serious issue about the health of women and how we can predict this amendment will work out in practice. I do not pretend to have the foresight or prophetic vision the Minister has and say categorically that a particular interpretation of the workings of this amendment in practice or by the Supreme Court will happen. However, this amendment, like the 1983 amendment, is open to a variety of possible interpretations and because of its ambiguity one of its impacts could be to place the life of women at risk. I say this on surer footing than the Minister is on, in that, unfortunately, things I said in 1983 have come to pass. Queries I raised about the wording in 1983 have been proved correct. Practically everything the Minister said about the 1983 wording has been proved to be utterly and completely wrong.
I regret we are dealing with this issue in this way today. Originally when the Taoiseach talked about the possibility of consensus certainly within the Fine Gael Party there was a hope that we would be involved in a genuine discussion and exchange of views to see whether this issue could be tackled in a way which would allow for a consensus to be reached. The Taoiseach's version of a consensus is simply that he puts up a proposal which everyone else must accept and there is no suggestion of taking on board genuine concerns from people——
That is hardly the way I heard the conversation between the Taoiseach and the Deputy's leader.
——who wish to address a serious issue in a serious way. Snide and foolish remarks, Minister——
I had to be a little snide there because that is not how it was.
——directed towards views expressed by colleagues who are sitting beside and behind me who have genuine concerns and worries about this are not appropriate to this debate. Considering the Minister's record on this issue I would have expected a little more reticence on absolutist statements today than we have had in the past.
I have been entirely consistent.
Entirely inconsistent. Everything that has happened since 1983 has been entirely inconsistent with everything the Minister and his colleagues have put on the record of this House. The Minister should have the decency to acknowledge that. The difficulty we have with the present situation is that if the Minister is inaccurate again some women could have their lives placed at risk and some lives could be lost.
Did the Deputy vote in the House?
Did the Deputy vote with the Government?
Which amendment is the Minister talking about?
The amendment in 1983.
I voted against the 1983 amendment. You voted in favour and created this problem.
The Deputies spoke about the time factor involved, therefore, I ask them to refrain from interrupting and delaying the House further. I ask Deputies not to invite interruptions.
I will deal briefly with some of the reasons I believe this House should support the amendments tabled by Democratic Left in respect of a proposal to substitute a better formula of words to those put forward by the Minister, not just in respect of the difference between the life and health of women, but in regard to a number of other important aspects.
Throughout this debate the Minister has constantly sought to dismiss Deputy De Rossa and me, and indeed my other colleagues in Democratic Left, with a shake of the hand by suggesting that we propose a case for abortion on demand in Ireland. I thank the Chair for giving me the opportunity to deal with that briefly.
The manner in which the Minister sought to dismiss the proposals made by Deputy De Rossa in advancing his amendment was insulting in the extreme. The note I took of what the Minister said was that because, as a party, we propose that abortion should be available in the State to assist women faced with a real and substantial risk to their health as well as their life, we are, therefore, arguing for abortion on demand. He then used the cliché — and I do not understand why he continues to use it — that the Government and himself are not in the business of introducing abortion, that their amendment is a pro-life amendment. I am pro-life; I am the father of children but I am also pro-abortion to the extent that I recognise there are circumstances in which abortion is necessary to assist women to guard against threats, real and substantial, to their life as well as their health.
It is regrettable that the Government, with the wave of the hand and the use of abusive language, continue to dismiss those who in some way wish to address this debate, because they believe we support abortion on demand. My understanding of the words "abortion on demand" is that regimes somewhere in the world provide for the absolute right of a woman to present herself at a clinic up to a certain stage of pregnancy, to be given, without let or hindrance, an abortion as a means to terminate a pregnancy or as a method of birth control. That is what I understand abortion on demand to mean. No one in this House, and indeed no one in the wider debate outside this House as I understand it, has yet sought to make that case and neither Democratic Left nor I are making that case as a medical or other proposition.
In a document which we published during this debate — to which, regrettably, the Minister paid no regard or took no time to consider — we proposed that in certain specific circumstances set out in that document a woman should have the right to opt for termination of her pregnancy. Those circumstances include a case where the life or the health of a woman are threatened with a real and substantial risk, where the woman is subjected to rape or incest or where the medical advice and opinion is that the foetus has no hope of survival beyond delivery. In those circumstances, within a certain period of time, we proposed that a woman should have the right to opt, on medical advice, for a termination of her pregnancy. We set out a broad range of circumstances into which that regime should fit which included proper counselling and support before and after the termination. We suggested a proposition, which has the support at least of one Minister, because he made a similar proposition on our national airwaves, that there is a contradiction in insisting in those circumstances that abortions which take place in another jurisdiction should end and that we should provide for them at home.
Although the Minister has a much narrower definition of the meaning of abortion on demand, he must accept that it exists as a fact of life for many thousands of Irish women today. It has been estimated conservatively that more than 5,000 Irish women each year travel to England with a view to ending their pregnancies. Because he maintains it never happens here but can be facilitated by the right to travel and right to information on such services in a jurisdiction, in some instances no more than 60 or 80 miles away, is the Minister suggesting he is dealing with this issue in a morally correct manner? In a document the Taoiseach circulated to party leaders as representing the basic briefing material from the Attorney General to the Cabinet and upon which the Minister and the Government were making the decision with regard to the legislation, it is stated on page 3:
Some doctors are of the view that it is possible to treat these conditions without resorting to direct abortion. However, it seems difficult to advance, a categorical statement that circumstances could never arise which would require a direct abortion to save the mother's life.
Acting on that advice, that there can never be an absolute proposition advanced that rules out direct abortion in all circumstances, the Government should proceed and they have proceeded.
It is also regrettable that the Minister had absolutely no regard for the acknowledgment I recognised in the Government's proposals, limited though they were, that they squarely address the preposterous argument advanced by the pro-life group that there is an absolute formula of words that can be written into the Constitution ruling our forever the proposition of abortion being provided for in Irish law and medical practice. I acknowledge the Minister had at least taken that ridiculous proposition squarely on board and said categorically that it cannot be adhered to and that the Government were providing, although in restricted circumstances, for abortion in certain circumstances in this State. Yet, the Minister has said that his amendment does not provide for abortion, it is pro-life. Why are we engaging in such dishonesty even at this stage? We have had a reasonable debate on Second Stage and sometimes on Committee Stage. Therefore, why are we reducing this debate to the level of hurling insults across the floor?
The Minister's amendment makes proposals for abortion although he may want to call it something else. I am not worried if he wants to call it termination of pregnancy; that is his right and I do not wish to deny him that right. However, when someone stands up here and uses the word "abortion" it is not a basis upon which the Minister should dismiss us as if we were making some unreal proposition which has not been made in this debate. The Minister must listen to the arguments put forward.
Fine Gael have serious reservations on the distinction between life and health. The Government only want to talk about the right to life, which I accept, but it must be the right to a healthy life. It is no good the Government saying that they will allow women to survive without regard to their condition? Is there to be no regard by our medical profession, our Government and our legislators to the condition in which women will be left after they deliver their child? For instance a woman said on radio only last week that the advice she received was that the inevitable consequence of the delivery of her child to full term would have been incontinence for the rest of her life. Is such a woman to be denied the opportunity and choice to say, "if I want to be a healthy, living woman to care for the other children in my family, I cannot cope with that condition and, therefore, should have the right to consider, in consultation with my medical advisers, a termination of the pregnancy"?
What of the position of the Mrs. Hodgers of this world? Is it a proposition that they are to be helped to the point of delivery, and to survive for only two days after the birth? Can anyone explain to me, either by reference to the previous law which the Government say they are abiding by in this amendment or, indeed, in consequence of what is now before us, what the position of that woman or any woman will be should they have to go through that unbelievable experience, where the husband could stand at the front door of the hospital and hear his wife scream in pain four floors above? What medical practice, what proposition in law or what succour under the Minister's proposal is to be given to a woman in similar unfortunate circumstances?
We in Democratic Left have reservations that have been spelled out in the amendment. A paper prepared by Dr. Anthony Clare, one of the most eminent psychiatrists in this country, concluded — and I quote from the document he prepared: "The relevant literature is reviewed which shows that suicide is an occasional outcome of refused abortion and has fallen in those jurisdictions which permit abortion on psychiatric grounds". To my mind it is utterly inconsistent for people, particularly the Minister for Health, to argue that suicide, which is a clearly identifiable medical condition, cannot be considered as a proper ground for abortions on medical supervision or advice. I utterly reject the Minister's view that it is not scientifically possible to evaluate or establish suicide as a phenomenon. That flies in the face of all medical advice and beliefs as I understand it. It is an incredible statement by the Minister and represents a total shift of ground on his part of this debate because up to now the Minister had argued that if suicide was allowed as an option — following on the partial reliance on the David Owenses of this world — it would represent "abortion on demand". That was the only argument and proposition put forward by the Minister as to why the issue of suicide could not be considered. The Minister, in this preposterous statement, suggests that suicide is scientifically unquantifiable. That proposition must be totally rejected.
I am grateful for the opportunity to make this brief contribution in support of the amendment proposed by Deputy De Rossa and other Deputies in Democratic Left. I believe the Government could have done much better. We have put forward a number of alternative proposals and if the Government ever seriously considered achieving consensus on this issue, they should have adopted the amendment to remove the ridiculous proposition which makes a distinction between the life and the health of the woman. That in itself would have gone some way to meet the reservations on all sides of this House. I do not believe that the Minister, the Taoiseach or anyone on the opposite side of the House had ever any interest in achieving consensus on this issue.
I now call on Deputy Fennell and I will then call on the Minister to reply.
I had thought that following the request made by Deputy Fennell on behalf of both of us that we would at least be allowed to speak on behalf of women in these last few minutes of the debate.
I appreciate the views of all speakers in this debate, and I did not wish in any way to demean or diminish any other Deputy's contribution.
The Minister is deluding himself totally about his support in this House, which he has mentioned frequently. The Progressive Democrats did not support what the Minister was doing. It was a shotgun vote. As far as I am concerned there was not majority support in this House. The majority feeling was against this amendment which is now before us. I regret that the Progressive Democrats decided that this was not an issue on which they could make a stand. We heard the contributions of their two Deputies and we know how they feel about this issue. Therefore, I suggest that the Minister reflect and realise that he does not have a majority in this House for his actions.
I make the appeal that we should be laying down principles in our Constitution, that we should not be inserting definitions such as we have discussed here today. This amendment is laden with uncertainty. It will create difficulties for doctors, in hospitals, and it will introduce uncertainties that were not there previously. It will make women fearful and uncertain when they are beginning a pregnancy. I can assure the Minister — and my views on this do not stem from the last letter inThe Irish Times or the last television documentary that I have seen — that I am speaking from my experience as a woman and as a mother, and as somebody who has very close contact with the pregnancy culture, I know what women talk about. I know the kind of secret fears they have. I can assure the Minister that the legislation he is railroading through this House will compound that fear and that doubt.
I have three children and my daughter will soon give birth to a baby. It is a wonderful experience, but I can assure the Minister I have listened to the doubts and uncertainties that women have expressed. This debate, and the following debate, will make women even more uncertain about their treatment and about the kind of dictates that will be made by their doctors. The Minister should have listened to the views of women. He should have listened to people such as Justice Mella Carroll, who gave the Minister a very detailed brief. He should have listened to Frances Fitzgerald and the people in the Council for the Status of Women. He should have listened to the women TDs in this House. I suggest that I, no more than Deputy McCartan, did not like the snide manner in which the Minister referred to my feelings in this debate. Of course there may have been slight differences among the members of this party, but I am proud to belong to a party that allows us to have these differences. Since I entered the party in 1979 we have been allowed to express views that may be different from the mainstream. Unlike the Minister's party, we are not beaten around the head and told that there is only one viewpoint with which everybody must agree.
I support these amendments because I cannot accept the distinction between the health and the life of a woman. The Minister's contribution reads a little like something from a legalistic or moralistic Disneyland, where we are talking about matters which are not quite what they seem, the Minister's own definitions. So far as I am concerned, the life and health of a woman are the same. During my years working and being in close contact with women I have seen many women — some poor and a few with heart complaints — who were worried about their tenth or eleventh pregnancy. Such women would want the freedom to consult their doctors and make the right decisions. I have very little hope that this debate or the debate in the Seanad will change the minds of the Government or the Minister. It seems that these words are written in tablets of stone and it is not possible to change them at this stage. The approach being taken on the health and life of a mother, and excepting suicide, is seriously wrong and I regret it.
I call the Minister.
Deputy Barnes wishes to intervene.
I have tried to be as fair as possible. I called on the Labour Party, Democratic Left and two speakers from Fine Gael.
I do not want to speak; I was referring to Deputy Barnes.
I am calling the Minister to reply to some of the queries raised.
Perhaps the Minister will let Deputy Barnes contribute.
If the Minister is prepared——
I shall be as brief as possible. Like Deputy Fennell, I appreciate the concern, anger and outrage which has been expressed by men and women during this debate about the proposed wording. I am glad to say that these feelings are shared by people outside this Chamber, particularly by fathers and men who care about the life and health of their wives. These men recognise that childbirth cannot be taken for granted and that it is a time of high anxiety. The Minister referred to the popular and warm approval given to this wording by the majority of people outside this House. He is either totally out of touch or he has not spoken to the majority of the people who believe otherwise.
Like my colleagues, I believe the word "protect" should be included instead of "save". The word "protect" is affirming ative and signifies life. Every pregnant woman needs to know that she will be protected in every way possible. The word "save" is stark and is regarded by women as life threatening. I do not know if the Minister is aware of the enormous difference between those two words and the fear "save" can engender.
I wish to refer to a point which needs to be pinned down here. The Minister said:
If there were to be only one case in one million, or even ten or more million, we would have to take account of it. There is a duty on all of us to ensure that nothing is put into the Constitution which might, even in the remotest possible case, mean that action that was necessary to save a woman's life would not be taken.
I welcome that affirmation but unfortunately it cannot be guaranteed by the wording in the substantive issue. My colleagues have referred to health and quality of life. As we know, women have been worn out, have become invalids, had their lives shortened and their quality of life destroyed as a result of a pregnancy and the health problems which can arise from childbirth. These problems may not be life threatening but they are life shortening and can destroy the quality of life not only of the woman but also of her husband and children. Consideration has to be given to the necessity for a good quality of life. Hopefully it will be recognised that a healthy and protected mother is the most positive unit in our society. The emotional and mental well being of a mother has a ripple effect not alone on her family but on the community as a whole. Everyone in this House knows that if women avail of the opportunities they get to enhance their lives this too will have a ripple effect on society.
Above everything else, I am astonished that the mental, emotional and psychological health of women is being excluded. It is already legally accepted that women suffering from post-natal or pre-natal depression cannot be held responsible for any crimes they commit. How can the Government say that mental, emotional and psychological problems are not life threatening? It has been legally established that a woman suffering from pre-natal or post-natal depression is of disturbed mind.
As Deputy Fennell said, there is a feeling among the Government that they consulted with everybody who needed to be consulted. I wish to state clearly in this House that neither women nor their representatives were listened to. The Second Commission on the Status of Women, the Council for the Status of Women, the Society of Psychologists of Ireland and 13 gynaecologist obstetricians from Cork, Dublin, Donegal, Kerry, Portlaoise, Wexford, Galway and Limerick were not listened to. The Minister may feel that he has listened and learned, but I wish to point out that women have an inbuilt disgust at this wording and feel they will have no control.
I am referring in particular to cases involving rape and incest where a young girl or woman will not be able to terminate a pregnancy. We all recognise that rape and incest represent domination and control and that they destroy people's lives. This violence should not be compounded by more domination and control where a woman is told she has no choice about terminating her pregnancy. This represents an invasion of the integrity of all women. Other Catholic countries and countries which care deeply about life have introduced legislation and, where necessary, constitutional amendments which dignified and valued women and did not sideline, marginalise and frighten them as this wording does.
I want to put on the record that I appreciate what Deputy Bruton said earlier in so far as he had taken advice on certain aspects of this matter. He fully recognised that the use of the words "as distinct from the Health" is in no way to mean giving less care and consideration to the health of the mother. That was generous of him. He put it on the record and he accepts that if that impression is given by the words as framed, it is the wrong impression. It is an important thing for him to say and I gladly acknowledge it. There is nothing that can be interpreted as not allowing all medical attention to be given to a pregnant mother in so far as her health and the protection of her life is concerned.
I had hoped I would not have to waste any time in dealing with a matter which Deputy Shatter persisted in raising on Second Stage, and on occasion today, regarding the words used in the decisions of the judges of the Surpreme Court. I would ask the Deputy to look again at those judgments. I could give quotations to show that all the judges, as well as the Chief Justice, were talking about life, not health. I take it Deputy Shatter agrees that Mr. Justice Finlay made that reference. The late Mr. Justice McCarthy used the phrase "when there is a real and substantial risk attached to her [the mother's] survival". Survival, I would suggest to Deputy Shatter means life, not health.
Nobody is arguing about that. They all said life, but none but the Chief Justice said life as distinct from health.
Deputy Shatter continually made his point about the use of the word "life". Mr. Justice O'Flaherty and Mr. Justice Egan, as well as Mr. Justice McCarthy, always made that distinction. It is quite obvious from their judgments that it can only mean life and not health.
They said life. They did not say life as distinct from health.
Regarding health as a ground for termination of pregnancy, several Deputies would like to have it both ways. I regret that. Deputy Shatter said it is not necessary to make the distinction between life and health, but what he is not prepared to say is whether a risk to health should be a ground for the termination of a pregnancy.
If it is life-shortening.
He would rather have it judged by the courts. I cannot get a clear and unambiguous reply from Deputy Shatter or from Deputy Barnes.
He does not have one.
If it is life-shortening.
I regret that, because it raises something in my mind regarding their understanding as far as health is concerned. It is quite clear in the contributions I have made that all medical attention will be given to a pregnant woman in so far as the protection of her health is concerned, in all circumstances.
The saving of her life?
Regarding the saving of her life, all medical and surgical treatment that is necessary must be given, as has been the common medical practice for many years. It is not altered in one iota by the wording of this amendment. Everybody seems to accept that, except for a few chosen ones. I would ask the Deputies to reconsider. It is the fact of the matter that medical attention will be given to pregnant mothers in so far as the protection of their life and health is concerned, just as it is now, except that suicide is being ruled out as a ground for a termination of pregnancy. Some do not want that. I have heard on various sides of the House that they would like to see it included, but we have stated specifically that this is the real thrust of the Twelfth Amendment of the Constitution. Suicide as a ground for termination of pregnancy will not be included.
Article 40.3.3º is being retained and the right of the unborn is not diminished in any way by this constitutional amendment. The constitutional protection remains undiminished. It is worth remembering that. This is about protection of pregnant mothers and their entitlement to get all medical attention needed for the protection of their health and their lives. It is not just pro-life in so far as the unborn are concerned. It is pro-life in so far as the mother is concerned as well. That is what we are trying to convey in this amendment. I recommend it to the House.
As it is now 6.45 p.m. I am obliged to put the following Question in accordance with the Resolution of the Dáil of 21 October: "Go n-aontaítear leis seo i gCoiste leis an Sceideal, an Réamhrá agus an Teideal agus go dtuairiscítear an Bille dá réir sin don Teach gan leasú; go gcríochnaítear leis seo an Ceathrú Céim; agus go ndéantar leis seo an Bille a rith. That the Schedule, the Preamble and the Title are hereby agreed to in Committee and the Bill is accordingly reported to the House without amendment; that Fourth Stage is hereby completed; and that the Bill is hereby passed.
Cuireadh an cheist.