The Attorney General, we are told, has advised the Government that a Bill of this type which did not permit giving names and addresses of abortion clinics outside the State would be unconstitutional. The logical implication of that advice in general terms is that it is now lawful to provide that information. This Bill, therefore, does not make it lawful for the first time to provide such information, as the Fourteenth Amendment of the Constitution already did that.
The most that can be said of this Bill is that it acknowledges or redeclares what is, in any event, the law. If there were no such Bill, the Attorney General would, in the light of his advice, to the Government, be bound to go to court to uphold the right of women to receive names and addresses and if necessary to support the position of such women in any court proceedings taken against them on this matter. This Bill does not give women any new rights nor does it amount to even a modest advance in their position. It is, on the contrary, at best a deeply demeaning and begrudging acknowledgment of women's rights in modern Ireland as decided already by the people.
If this Bill were simply an acknowledgment of the Fourteenth Amendment to the Constitution I would have no objection to it in principle, but it is much more than that. It couples that acknowledgment with a series of criminally sanctioned prohibitions which demean the intelligence of women, bring the law into disrepute, interfere with legitimate freedom of speech, subvert the position of the Irish media and invade the proper privacy, confidentiality and trust which characterises the relationship between patients, women patients in particular, and their doctors. In every respect this is a shamefaced and shameful Bill. It will, as time goes by, head the list of contemptible and embarrassing Irish statutes. Just as the collective idiocy which led to Irishmen and women requiring a doctor's prescription to buy condoms, it is being suggested that this Bill is a politically expedient measure and a compromise. I reject that description of it.
Some Members have argued with sincerity that the principle of the Bill is right but that it needs amendment. What is the principle of this Bill? I can quote extensively from Government speakers and I do not have to elaborate that this Bill does everything it possibly can to prevent the Fourteenth Amendment from having any real meaning, short of taking away from women the right to know the names and addresses of abortion clinics in England.
Sections 3 to 12 create a series of entirely new offences that strike at the heart of a liberal and democratic State. Section 3 makes it a criminal offence for anyone to import publicly what is termed "Act information" unless the information is truthful and objective and is not accompanied by "any advocacy or promotion of the termination of pregnancy". Section 3 will necessarily make many British newspaper articles, magazines, radio and television programmes incapable of lawful publication or retransmission in this State. It will also, as currently drafted, arguably criminalise any Irish author or broadcaster who participates in or contributes to such publications as they will be seen as "procuring the publication" of "Act information" in breach of this Bill.
I reject the effort of the Minister for Health, Deputy Noonan, and the Government to reintroduce mass censorship, not merely of the print and broadcast media, but also of the basic right to freedom of speech. I reject as wholly fanciful the notion that any woman would attend at a public meeting to gather "Act information" on her own pregnancy and since the section permits unlimited advocacy of abortion and transmission of "Act information" in private and by people to whom section 5 does not apply, the section is clearly no protection for the unborn but a case of creating a nauseating false facade of public morality.
The only section with which I am in sympathy is section 4 which deals with unsolicited propaganda and billboard advertising. Section 5 clearly applies to medical doctors. It proposes to prohibit and criminalise any doctor who, in the circumstances of the girl in the X case, advises that girl or her family that she should have an abortion. The section makes no exception of the circumstances recognised in the decision of the Supreme Court in the X case where it was found that a woman has a clear constitutional right to have a pregnancy terminated within or outside the State where "there was a real and substantial risk to the life of the mother". The Supreme Court held in that case that such a risk was not confined to a risk of immediate or inevitable death. In those limited cases it would be the right, if not the duty, of any doctor to give a woman his or her professional advice one way or another as to whether she would have an abortion.
I cannot understand how the Attorney General, for whom I have great respect, can possibly advise the Government that the right of a woman to have her pregnancy terminated in the circumstances suggested by the Supreme Court decision in the X case is vindicated by a law which prohibits her trusted advisers from recommending such a course or advocating it on good medical grounds. Nor can I see how in those circumstances section 8 (1) can possibly be constitutional.
The failure of this Bill to take on board the rights of women as found by the Supreme Court in the X case probably stems from the fact that it was in gestation when the substantive issue legislation was also being contemplated. Whatever the reason, the deep constitutional flaw here is that there is no provision for a woman in the circumstances of the girl in the X case and this Bill prohibits her doctor from giving her advice which he is now lawfully entitled to give her. In that context this Bill is flawed, holed beneath the waterline and will be found, if it is referred to the Supreme Court, on that basis alone to be unconstitutional.
This Bill has been represented by Government Ministers and speakers as being mandated by the Fourteenth Amendment. The Fourteenth Amendment does not oblige this State to enact a Bill of this type with the draconian criminal penalties and the clampdown on ordinary democratic behaviour, freedom of expression and ordinary relationships between doctors and patients. It is false to claim that it does. I have come to the conclusion that the Bill is unconstitutional because of the damage it does to the doctor-patient relationship. It is inconsistent with the judgment of the European Court of Human Rights in Strasbourg in the "Open Door" case. Section 6 is inconsistent with the judgment of the European Court of justice in the Grogan case.
If section 5 and 8 infringe the Constitution on the grounds set out in the X case, sections 6 and 7 offend the Treaty of Rome and section 3 offends the European Convention on Human Rights, this is a very worthy monument to the Minister's respect for the Constitution and the rule of law. It is an Irish solution to an Irish problem. The Minister has a sad legacy.
I am surprised that the media have focused on the intricacies of the sham battle between the Minister and the pro-life lobby without any regard to what the Bill implies for a liberal and demoractic State, for the constitutional rights of women, as decided by the Supreme Court, for free speech and for the media. Where is the ever vocal NUJ now? Where are the champions of civil liberties? Where are the civil rights organisations which speak out so frequently on other matters? This Bill should have been opposed by all those bodies.
I was attracted by the argument of the late professor John kelly in 1983 that the Eighth Amendment should be accepted on the basis that, while unnecessary, its defeat could lead Ireland in the wrong direction. Now I am totaly guided by the maxim "once bitten, twice shy". This Bill, if passed will come back to haunt us and it will not fade away and gather dust on the shelf. Prosecutions will be brought under its provisions, magazines will be banned under it and programmes will be taken off air because of it. There will be disputes in the courts about it, doctors will be referred to the Medical Council because of it and will be subject to harassment by people trying to gather evidence to discredit and disgrace them. That is what this Bill is all about. Anyone who thinks that by passing this Bill all the problems will fade away should remember what happened at the time of the Eighth Amendment. Those of us who thought that the issue had gone away were rudely awakened to reality when the Bill came back to haunt us and we discovered that it had become a charter for a small self-appointed group of moral policemen to harass those in society with whom they strongly disagreed. This Bill is also a charter for that and we should not cod ourselves because that is what it will be in the last analysis.
I have come to the general conclusion that the majority of people want to steer a humane and cautious middle course between the extreme proposition that, on the one hand, a fertilised ovum is a human being with full and equal rights or, on the other hand, that an unborn child, no matter how close to full term, is disposable at the option of the mother. I completely reject the notion that any female is obliged to carry a pregnancy to full term where conception was based on rape, incest or sexual abuse of a child. As Deputy McCreevy said, many Deputies, if concerned with members of their own families, would take a different view from the hectoring moralising to which they have been subject from a small self-elected minority.
I also reject the notion that any woman who faces a real and substantial risk to her life should not be free to receive proper medical advice and full medical assistance to avert that threat. The prohibition in section 8 on doctors taking active steps to ensure the safety of their women patients is unconstitutional. Contraception should be made widely available. The present high rate of abortion among Irish women reflects inadequate access to proper contraception rather than any differnce in moral outlook. I completely reject the suggestion of some of the pro-life movement which would ban the use of the morning after pill on the grounds that it would murder a cell or a handful of cells.
The travel and information amendments were accepted by the majority of the people with clear knowledge of what was involved. I cannot accept the suggestion that those who urged a no vote in 1992, as the pro-life campaign did on the Fourteenth Amendment and other amendments, were misled in any way. The then Minister for Health acknowledged on television that names and addresses would be furnished as a consequence of the Fourteenth Amendment. The pro-life movement opposed the amendment in November 1992 because it would make lawful the provision of what is termed in the Bill "Act information".
I mention these matters to illustrate that there are many complex and subtle aspects of the abortion issue which cannot be reduced to simplistic formulae. The people understand these complexities far more deeply and profoundly than some of the self-appointed experts and moralising pundits.
In the light of these opinions and of the fundamental wrong which this Bill, if enacted, would constitute I am opposed to it in principle. It casts shame on the House because it betokens a sense of collective dishonesty on our behalf. It achieves nothing of substance for women except ignominy for those asked to acquiesce in the passage of this Bill. Since it achieves nothing new we would be better off without it.
I appreciate the irony of voting with those whose views are in many, though not all, cases radicallly opposed to my own but since I cannot identify any significant principle of the Bill with which I can agree and since I disagree in principle with nearly all of it, bar section 4, on constitutional, legal and moral grounds I feel obliged in conscience to oppose it.
