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Dáil Éireann díospóireacht -
Thursday, 18 Jan 2018

Vol. 963 No. 7

Report of the Joint Committee on the Eighth Amendment of the Constitution: Statements (Resumed)

I thank the Chairman of the Oireachtas joint committee, Senator Catherine Noone. I also thank the members of the Citizens' Assembly who made the work of the committee so much easier by placing in the public domain an enormous amount of information and vital evidence. In addition, I thank those members of the committee who approached the work of the committee in a thoughtful and professional manner. We heard evidence that was sometimes difficult to hear, but it was very necessary. Some members of the committee used their body language and close physical presence to delegates in a manner which I personally believe was designed to be intimidatory. They did themselves and their cause no favours.

We have heard the evidence from experts. We wanted facts, not opinions. We have heard the evidence from the experts on why the eighth amendment must go. We heard from the masters of the maternity hospitals, the men and women we trust to look after women - our daughters and their friends. They have told us, clearly, in a way one could not misunderstand or misinterpret, that the eighth amendment is an impediment to them in doing their job. Professor Malone, Dr. Peter Boylan and Dr. Rhona Mahony said it. The evidence is there. It does not suit the narrative put forward by the anti-abortion cabal which is reminiscent perhaps of what was being said in 1983, but we have moved on. Women have fought and continue to fight for equality. We will not go back into the boxes in which the patriarchy tried to put us in 1983 and for the decades thereafter.

We spoke to medical professionals and legal experts. The facts might contradict the narrative put forward by some, but they are the facts. Spurious claims were made at the committee. For that reason, I had to write to the lcelandic and Danish Governments in order that they could defend themselves against the misinformation and put forward the facts.

Many Irish women have had the personal experience of travelling to England either with a friend or on their own and they gave an English address. Therefore, we cannot say definitively how many women travel, but we know that it is in the thousands. We cannot say Irish women do not have abortions. They do; they just do not have them here. They take abortion pills and while the pills are safe, it is not ideal that they are sometimes taken without medical supervision.

For me, the most compelling evidence at the committee was given by the masters of the maternity hospitals, in particular Professor Malone who, to paraphrase him, said the eighth amendment prevented him from providing a full range of health care services for the women in his care.

Repeal simpliciter is the best option. It is Sinn Féin's preferred option and the option favoured by the committee. That must be reflected in any question put to the people. I will not rehearse the Sinn Féin position which is well known and has been well ventilated, but I will say I am immensely proud of my party and our members for the manner in which they have discussed this issue of women's health and health care and the way they have embraced the need to repeal the eighth amendment. Given that we are concluding a comprehensive 32-county women's health policy, it is not appropriate that we pre-empt any further decision of our members on this issue. We will be bound by the decision of our members. Our activists are the lifeblood of our movement and their decision, once arrived at democratically, is important to us. It is instructive, not indicative. However, whatever our members decide, we must be clear that it is unimplementable, unless and until we repeal the eighth amendment.

We are having a respectful debate. Let us hope we have a respectful campaign. I call on all repealers to come together. Whether we agree or disagree on what legislation may be drafted in the aftermath, we must put repeal first. I call on the leaders of other parties to do what their job title suggests and lead on this issue. The women of Ireland will not thank us if we do not provide leadership. They will not thank us if we use this referendum to score political points. The committee heard a huge amount of unbiased and expert evidence, some of which was very moving, like the stories shared with us by Termination For Medical Reasons Ireland, and some of it put very clearly the need for repeal.

I will conclude by saying to my parents and others who campaigned against the insertion of the eighth amendment in 1983 that they were right. What they said in 1983 was right. They were subjected to quite disgraceful and disgusting intimidation at the time, but they predicted all of these issues. We can now say they were right when they predicted the complications that would result from inserting an issue related to women's health care into the Constitution. We have an opportunity to put this right. We thank the veterans of 1983 for trying to keep the amendment out of the Constitution. We assure them that we will not miss this opportunity to work hard to get it out. Similarly, I thank all of the young people, many of whom are young women, who have driven this issue in more recent years. We all shared our ages yesterday evening. I say this as someone who is possibly moving gently into the category of "auld wan", that it is not for me that the amendment needs to be repealed but for those women who will come after me.

Today I remember Ann Lovett, Sheila Hodgers, Joanne Hayes and all those women who have been served horrendously by the State. For them, our daughters and granddaughters, we will repeal the eighth amendment.

I, too, very much welcome the opportunity that I had to serve as a member of the Oireachtas Joint Committee on the Eighth Amendment. It really was a privilege. I pay tribute, in particular, to the Chairman but also to all of its members, some of whom came on particular journeys. It was a very positive and enriching experience. I also thank the members of the Citizens' Assembly for the work they did, including the chairman, Ms Justice Laffoy. It was a particular privilege for me as one of those "auld wans" who campaigned back in 1983.

I get that all the time. How does the Deputy think I feel?

To some extent, I am disclosing my age category, but I will not be exact on my age. I campaigned in 1983 against the insertion of the eighth amendment into the Constitution. It was a very difficult campaign. It was my first election campaign and the first time I had ever knocked on doors. If that did not put me off knocking on doors, nothing ever will because it was a truly horrendous campaign for everybody, particularly for those involved on the side I was on. For that reason, it was really historic yesterday to listen to the debate in the Chamber. It would have been simply unthinkable not very many years ago for a Minister for Health to stand up in the Dáil Chamber and give the numbers of women from every county in Ireland who had travelled to Britain for an abortion.

Back in the dark days of 1983, women were in a very dark and lonely place. We saw evidence of that this week in the information on the Kerry babies case and the way in which Joanne Hayes was treated. It was a very dark and lonely place for Irish women in so many ways. Others have spoken about the Magdalen laundries, the way in which children were put into institutions and the way in which unmarried mothers were treated. This is still a dark country for the thousands of Irish women who travel to Britain or elsewhere to have an abortion or who have to take a pill. Again, they are in a dark, lonely place where they cannot talk about what they are doing and where they are actually committing a crime. While we have come an awfully long way, we still have not dealt with the issue facing the women of Ireland. Over 5,000 women per year are affected. This number is based on adding the number of women who gave Irish addresses to clinics in England and Wales to the number who accessed Women on the Web. That is not even all of the women because others travelled to other places, and others obtained pills online through other mechanisms. Therefore, we have to ensure that we address this issue and do so now. We cannot say Ireland is not a dark place for women until we address this issue.

I very much welcome the fact that, at the committee hearings, everyone was open to listening. Maybe I would make some exceptions but most of the members of the committee were willing to listen to the evidence. It was about evidence, factual information and expertise. I shall quote some of the evidence because it is important to put some of it on the record. Committee members had the opportunity to hear it but most Members of the Houses of the Oireachtas did not hear it.

Before I put evidence on the record, I want to talk about the date of the referendum. It is crucial that we hold it in May. The date was always to be in May. Up to very recently, Government spokespersons spoke about May. We on the committee were told we had to have our report produced by 20 December, our deadline, so there would be time for the drafting of the legislation to be put before the people in the referendum, the setting up of the referendum commission, the debate in the Dáil on the legislation, and the drafting and publication of subsequent legislation that, should the referendum be passed, would reflect the Government's intention with regard to the law that would follow. We kept to our timetable and I do not see any reason the Government cannot keep to its timetable.

I strongly advocate a May referendum for a number of reasons, the first being that the leaving certificate examinations start in the first week of June. There are many 18 year olds who will be doing the examinations. There are many families who will be involved with young people doing them. Many mature students will be doing the leaving certificate examinations or junior certificate examinations. For those people, June is a very stressful and busy month, and they should be facilitated to vote. Many students in higher education travel abroad during the summer months or, if they do not, they may well go to another part of the country to work. They need the opportunity to vote also. People under the age of 53 have never had the opportunity to have their say on this issue. They should have their say. That is what democracy is all about. I strongly urge that the date be in May, not in early June.

The reason given for the possibility of a later date is that the Government needs to obtain the advice of the Attorney General on the wording that would be put before the people. I strongly advocate repeal simpliciter. I made that proposal at the committee hearings and it was supported by the majority of members. We made the decision following legal advice on a number of possible options. That advice, which was provided to us and also to the Citizens' Assembly, indicated that there would not be legal certainty on the issue of the Constitution, no matter which decision was made. Therefore, there will not be legal certainty with the alternative wording we understand the Government is going to consider. I refer to the possibility of inserting wording into the Constitution making it the duty of the Oireachtas to legislate.

The argument is that inserting wording would somehow safeguard the constitutional interpretation from the intention of the Legislature regarding an absolute ban on abortion and an exception where the life of the mother is at risk. There have been strong legal arguments that suggest this is not necessary and that any court that would be interpreting the Constitution would take into account the will of the Oireachtas and the various other rights in the Constitution, such as the right to privacy. I am strongly supportive of the argument that there is no necessity to include alternative wording in the Constitution. That was the considered view of the joint committee established by the Government. Repeal simpliciter is the question that should be put.

I do not see why seeking the advice of the Attorney General should cause a significant delay. The Attorney General, no more than anybody else following the debate, would have known the legal arguments and heard the arguments made at hearings of both the Citizens' Assembly and the committee. I would imagine and expect, therefore, that the Office of the Attorney General has work done on the considerations and should be able to report to the Government in the very near future.

The referendum date should be in May, and seeking advice from the Attorney General should not hold it up. The Government should be absolutely determined to ensure it holds it in May. It is really important that we deal with this issue once and for all. The Constitution is not the appropriate place to have an absolute or almost absolute ban on abortion, that is, the impossible provision of upholding the equal right to life of the mother and the unborn. The reality is very different from what is provided for. The reality is that thousands of women in Ireland have abortions. The reality is that there is abortion in Ireland. It is just not carried out in this country or, if it is, it is imported through pills, as somebody said yesterday. It is happening and we need to face that reality. The members of the committee did face that reality. The committee's work in that sense was very positive.

I commend those who fought the battle over the years because it has been tough and hard. Many people put their heads above the parapet at a time when it was very difficult. We should pay tribute to all those people, whoever they are, going right back to 1983. My party leader spoke yesterday about the Seanad group he belonged to and the way in which people were vilified at the time for voting in the Seanad for a Labour proposal not to accept the then Government's proposal to amend the Constitution. There have been many others since then.

I commend Labour Women, the women's section of the Labour Party, which has campaigned consistently and strongly. Its work is very important. Organisations such as the National Women's Council of Ireland have been very strong. The council consulted widely around the country with its associate members and the various bodies affiliated to it. It published a document called Every Woman, which is the result of that consultation. It emerged before the report of the committee but is very much along the lines of what the committee recommended. It is quite a short document and I urge Members to read it to see what the women of Ireland are saying on this issue. It refers to a protected period, which is the period of 12 weeks, and to protected people, such as those with a diagnosis of a fatal foetal abnormality, and circumstances where there is a threat to the life or health of the mother. The document states:

Our hope is to build a sensitive and inclusive consensus that acknowledges people's experience of pregnancy and family life in all its diversity and complexity. Our aim is to build a shared understanding of what reproductive services we need that will enable all women and girls to realise their potential. This means facing, with honesty, openness and compassion, complex issues relating to life choices, fertility control and pregnancy care.

I hope that will be the tone of the debate.

At the committee itself, we heard a significant body of evidence. I want to quote from three of the written submissions to the committee because it is important to put some of these on Dáil record. The first is from TFMR Ireland which represents those with a diagnosis of what is normally described as a fatal foetal abnormality. The presentation was powerful and affected many members of the committee. It stated:

We have to make our own travel arrangements. Do we go by plane, by car or boat? How do we get from the airport or ferry port to the hospital? Who will travel with us? If we have children at home, who will look after them? How do we get time off work? Do we have a passport? Can we afford it?

It is also worth pointing out that when we go for an induced labour and delivery we have no way of knowing how long it will take and when we will be coming home. This adds to the stress and cost.

The group then stated:

We need to find out whether or not we can bring our baby home, and if we can - how? If we have our car we can bring our baby home on the boat. This journey involves us having to go to a supermarket to buy freezer packs, and then we have to stop at regular intervals to open the coffin and change them so that we can keep our baby cold. We also have to leave our baby in a coffin in our car, covered by a blanket or in the boot, while we cross the Irish Sea.

If we are coming home by ferry but don't have a car, we have to carry the coffin on public transport - buses or trains - and carry our baby onto the ferry as a foot passenger.

If we are flying home, we may be able to bring our baby's remains on the plane. We have to check in advance with the airlines and deal with their special assistance staff. We may need to place the coffin in a holdall or suitcase and check it in as luggage. This will mean our baby will be put in the hold by baggage handlers and we will have to collect them from a luggage carousel in Dublin, Cork, Shannon, Galway or Knock. Alternatively, we could take the coffin onto the plane as hand luggage.

Imagine all of this is happening within hours of giving birth in the most tragic of circumstances. How do you think this makes people who live here feel? Would any of you be comfortable with your own family members or neighbours having to go through this ordeal?

That powerful presentation had a strong effect on committee members.

The Irish College of General Practitioners is very much at the coalface when it comes to women who find out they have a crisis pregnancy. In its written submission, it stated:

Despite efforts of the Government, educational initiatives and health care practitioners, and despite widespread access to emergency contraception, crisis pregnancy cannot always be prevented. A total of 35% of Irish women who have been pregnant describe having had at least one crisis pregnancy. It is usual for most GPs, as the first point of contact for individuals, to encounter women and sometimes their partners with unplanned, unwanted pregnancy.

The college gave the example of a woman with three children, but separated from her husband and who has become increasingly abusive towards her and her children. It described how she decides she will travel to Britain:

In the clinical vignette above, Sandra chooses to travel to the UK for an abortion. For women who choose an abortion, GPs cannot refer or make an appointment on behalf of the woman at a clinic in the UK. GPs may provide a copy of their medical records to the patient. GPs would also encourage women to return to the practice after having an abortion, if they have any concerns. GPs would also discuss post-abortion contraception. Irish GPs may need to consider a dating ultrasound if the dates are uncertain. Any GP who has a conscientious objection must refer women to another GP. Abortion is a very safe medical procedure.

The college described how Irish women tend to have later abortions because of travelling to Britain which is obviously not desirable.

The master of the National Maternity Hospital told the committee:

It is not always possible to predict clinical course with precision. In medicine we deal with probability informed by available clinical evidence and experience.

If, for example, a woman is 14 weeks' pregnant and the membranes surrounding the pregnancy rupture, there is very little chance that this foetus will survive, although foetal death is not inevitable. This mother, however, runs a significant risk of developing chorioamnionitis, although this is not inevitable. Therefore, in this case, a patient and her physician are required to monitor for the potential onset of chorioamnionitis and the resulting risk to life if such infection takes hold. We understand from experience that a young woman with severe infection can appear relatively well despite advanced infection - but she can decompensate suddenly and unpredictably. It is then to be hoped that modern medical therapies can successfully resuscitate her and treat her infection. Attempting then to terminate a pregnancy in a woman who is very ill and potentially at risk of dying confers additional risk but that is the current requirement of the law. And clinicians are tasked with getting it right in what can be a very narrow therapeutic window.

She continued that "decision-making may be delayed or distorted as clinicians ponder the law rather than medicine."

One could quote more of these submissions to the committee. However, it is important to put these on the Dáil record. It shows the dilemma of the families themselves who have to deal with difficult issues. It also shows the difficulties faced by the medical profession in dealing with what should be their medical care under the current situation.

Above all else, the committee saw that this should be a matter between a woman and her doctor. It should be part of medical care, not of the law. We should not criminalise the thousands of Irish women who either travel to Britain or take abortion pills. This is the reality. We cannot pretend this does not happen. We cannot stop what is the practice. It is a different Ireland now. We need to ensure that young people, who have never had a chance to vote on this issue, will have the chance to do so.

I urge that the debate be based on evidence and facts, not simply a question of stating absolutist positions which are not open to genuine discussion or consideration. This is one of the issues that we have not yet faced. It is one of the seminal issues that Ireland needs to address. We should not be excluding Irish women any longer from care in their own country and expecting them to travel to another country for a service that they clearly need and they are choosing.

The other issue is that of the pill and the fact women can access it and take it.

Another point strongly made at the committee was that in the case of rape or incest, it is practically impossible to facilitate pregnancy by way of some exceptional provision in the Constitution. That would mean putting women through a court case that would go on longer than the actual time for a termination. This is something we have been told is simply impossible. There are many reasons we should remove Article 40.3.3o from the Constitution. I urge that the referendum be held in May.

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