An Bille um an Ochtú Leasú ar an mBunreacht, 1982: Dara Céim (Atógáil). Eighth Amendment of the Constitution Bill, 1982: Second Stage (Resumed).
Thursday, 17 February 1983
Dáil Eireann Debate
“ndiúltaíonn Dáil Éireann an dara léamh a thabhairt don Bhille go dtí go bhfaighidh sí tuarascáil ar an mBille ó Chomhchoiste den Dáil agus den Seanad ag a mbeidh cumhacht fios a chur ar dhaoine, ar pháipéir agus ar thaifid.”
“Dáil Éireann declines to give a second reading to the Bill until it receives a report on the Bill from a Joint Committee of the Dáil and Seanad, having powers to send for persons, papers and records.”
Mr. Shatter: Before Question Time I said the simple way of looking at this legislation in the context of the present wording proposed to be included in the Constitution was to regard those who support this wording as being against abortion and those who disagreed as being in favour. This is one of the great ironies of this debate, because people have made these presumptions in the belief that this Bill merely copperfastens the existing law by ensuring that in no circumstances can the Dáil or the court require the Oireachtas to provide legislation to permit abortion. This problem arises because of the nature of the wording that this Bill proposes to be included in the Constitution. First, I should like to refer to the words which are
The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
In recent days we have had different interpretations offered as to what this wording means. The Attorney General pointed to the fact that the word “unborn” is used in a most unusual context and does not state exactly to what it is referring. He indicated it would be open to the Supreme Court to interpret the word “unborn” as being the foetus when it attains the state where it is possible of being born, after 28 weeks within the womb, which is the medical prognosis that there is some possibility that the foetus could retain life. In those circumstances, that was a valid interpretation that this amendment would permit an abortion up to the 28th week of pregnancy.
Another possible interpretation is that “unborn” would be taken by the Supreme Court to mean the time of conception, and that as and from immediately upon conception taking place, the unborn would be protected. If that was correct, and looking at the definition of the word “unborn” in the context of this amendment, there would not be a problem, but we are dealing with a constitutional provision. Its proponents have  sought to have it included in the Constitution to bring certainty to our law. Even at the start of this proposed new provision one can see uncertainty.
I have mentioned two possible valid interpretations of this wording. It has also been suggested by the Attorney General that by virtue of the right of the unborn being regarded as having equal force and effect as the right to life of the mother, if a mother had an ectopic pregnancy, or is suffering from cancer of the womb, or requires other medical treatment that could result in a foetus being aborted, even though the intention was to save the life of the mother, doctors would be unable to act because another possible interpretation of this provision is that the unborn and the mother would have an equal right and medical personnel would have to stand back, watch what happens and hope both lives would save themselves. If there was a possibility that that was not the case, medically they could not intervene until they were satisfied that the foetus or the mother would cease to live, at which stage presumably an attempt to save the foetus might or might not be viable.
The result of another interpretation of the word “unborn” is that constitutionally the Supreme Court at some stage in the future could say it is constitutionally acceptable for abortions to be conducted until the 26th or 28th week of pregnancy. Because of the equality of right between the unborn and the mother, even in those instances where presently there can be medical intervention to save the life of the mother, that would become constitutionally impossible.
There is another possible interpretation which has not yet been publicly discussed, but which I believe is just as valid as those which have been suggested — and in my view, it is just as worrying. Let us take the view that this amendment does what I think was intended by its drafters, that is, it protects the right to life of the unborn after conception — that phraseology is not used — and ensures that where the life of the mother is at risk there can be medical intervention. A simplistic view could suggest that the wording  preserves the existing legal position. I believe, however, that if this wording is included in the Constitution in its present form, it will go a great deal further than the existing law, and eventually will do the opposite to what its propoments campaigned for — it could open the flood gates to abortion, and it could be done quite simply.
If the intention of the article is to protect the equal right to life of the mother, one must ask what that means. Does it mean that if a mother's life is seriously endangered by a pregnancy, we would allow the pregnancy to go through a full term and possibly keep the mother alive on a life support machine; or does it mean something more than just preserving a physical existence? Has the quality of life some relevance to this argument? If it does, if included in the Constitution, would this Article permit abortions to take place where not only a woman's physical health but her mental health was endangered? Could it not equally be argued that the right of the mother to life requires a right to a proper and viable life in mental good health? Is that not a valid argument? If that were the final judicial interpretation of this amendment, then this amendment would permit abortions to be carried out where a mother's mental health was said by psychiatrists to be endangered as a result of her becoming pregnant. I do not believe that that is an intent on the part of the drafters of this Article. The interpretations to which the Attorney General has referred, the worries which the Minister has expressed and the additional possible interpretations of this Article in the area of abortion which I have given all have validity. There is not a Member of this House who can categorically state that if this matter were dealt with before our courts this year, next year, or in 20 years time, one of these interpretations to permit, and indeed constitutionally require, abortion would not be accepted. It is not something that could be constitutionally required under the existing Constitution, without this Article.
That there is a variety of valid, different interpretations of this Article means that it is not appropriate to be included  in the Constitution to carry out the intent of those who believe that such an Article is required. Too often we address our remarks to each other across the floor of this House and engage in some form of party-political battle; tactical forays take place across the dividing carpet; we make points which we hope will score a few political knockouts on the way and in the context of the ordinary rough and tumble of political life in this House in debates on ordinary legislation that is an acceptable exercise. However, it is not an acceptable exercise when considering amending the fundamental law which governs our civil and religious liberties. It is not acceptable for Members on either side of this House to insist on inserting into our Constitution a new Article which contains a form of words which it can quite cogently, accurately and honestly be argued might achieve exactly the opposite purpose to that proposed.
To all the Members of this House, in Government and in Opposition, who oppose abortion, it should be a major concern, as it is with me, that if this Article were included in the Constitution, not only could the courts constitutionally require this House to enact legislation at some future date to permit abortion but it is quite likely that as a result of this Article sections 57 and 58 of the Offences Against The Person Act which presently prohibit abortion would be found unconstitutional. This Article would be the legal ground for such a finding on the basis of one of the interpretations which have been given. The 1861 Act does not provide for abortions to take place in the exceptions to which I have referred. For example, the present law does not permit an abortion to take place if a woman's mental health might be endangered if she became pregnant.
Because of the possibility of this Article being interpreted in one of the suggested ways, if included in the Constitution, rather than copper-fastening the 1861 Act it would form the vehicle upon which that Act would be challenged. In saying that, it behoves Members to ask where this original form of wording came from. This has not yet been made clear to us. It is known that successive Attorneys  General found it difficult to draft an appropriate form of wording. The form was accepted in good faith by the Fine Gael Party when this form of wording was published immediately prior to the last election — a form of wording recommended by the previous Attorney General, discussed within the relevant Government Departments, fully and properly analysed with all the legal machinery available to Government and found acceptable and workable. Yet, what has been found since? I understand that this form of wording is not anywhere to be found in the Attorney General's Office, but in the files of that office there are to be found four possible different alternative forms of wording for a constitutional Article, none of which includes the form of wording contained in this Bill. It has been discovered in the Department of Justice that there is no evidence to indicate, or information to state, who gave birth to this form of wording. There is no file on this form of wording in the Department of Justice.
As a Member of this House, I want to know was this form of wording drafted by the outgoing Attorney General of the previous Government, or by his predecessor and does it have the approval of either? If it does not, who drafted it, where did it come from? Did it come out of a ministerial back pocket in case an election was called? What was the reason for the production of a form of wording of this nature, of which no detailed examination would appear to have been conducted either in the Attorney General's Office or in the Department of Justice, prior to publication. If that detailed research has been conducted, where have the files gone? Has the outgoing Attorney General got them or has some other Member of the party in Opposition a tale to tell as to who invented this form of wording? That is a very valid question.
There have been criticisms in this House of the Director of Public Prosecutions issuing a statement and criticisms inside and outside the House of the present Attorney General's intervention, which intervention has been little more than an explanation of the legal problems  which he, as the highest legal officer in the State, sees with this wording. Had either of the two preceding Attorneys General similar reservations and worries about this Article and will they publicly state whether either is responsible for the drafting of this form of wording?
Ironically, some of those, with whom I have no sympathy, who believe that abortion should be made available on demand here — something with which nobody in this House has sympathy and very few outside it, either — are now opposing the Article and those who do not want legalised abortion are supporting it. In reality, it should be the other way around. That is one of the great irrationalities of the present debate.
The wording of this Article could have other unforeseen consequences in the area of family planning. The worries in this area arise directly out of the phraseology contained in the Article. It is accepted by the vast majority — indeed, it is declared as a constitutional right in the McGee case — that married couples have the right to plan their families, to determine how many children they wish to have, the right of access to information about family planning services and to contraceptives. Those advocating this amendment have said that they do not wish to affect this area of our law, or affect the rights of the family and married couples to determine the number of children and to have access to contraceptives. However, this amendment could seriously invade the area of marital privacy which was constitutionally declared in the McGee case. In so doing, it could form the constitutional basis for striking down family planning legislation enacted in 1979 as unconstitutional.
The intention, as described in the Article, is to protect the life of the unborn. As I said earlier, the intent of the draftsmen was to protect the life of the unborn after conception. But the amendment does not use those words. It merely uses the word “unborn”. If one consults a dictionary to find out what the word “unborn” means one finds it is a very difficult word to define. In fact most dictionaries, just as they do not define  the word “undead” do not define the word “unborn”. Presumably something unborn does not have to be conceived, something unborn may not be conceived at all. A child that might be born to a family in 20 months' time, at this moment in time, could quite correctly said to be unborn.
Therefore, if we take that as a possible interpretation, which it is, if we even give this article a liberal meaning, a meaning that would permit intervention when a mother's life is at risk, could the effect of this article be to find that constitutionally, on its coming into force, contraceptives would be confined and made available only to married women whose lives would be placed in jeopardy if they became pregnant? There is a valid argument to be made in this area. I believe also that some of the more extreme groups who have advocated the need for this type of amendment of the Constitution, might see this as an opportunity — though they will not say it now, but might at a later stage after we have had our referendum — to use this article, as defined in this Bill, as a means for launching constitutional action to abruptly invade the right to marital privacy previously declared by our courts and to curtail the right of married couples and adults in this country to have access to contraceptives. That is an unforeseen consequence of this Bill. I believe that that possible interpretation and eventuality is as valid as many of the others we have at present.
All of this clearly indicates how inappropriate it is that this form of wording be included in our Constitution. Of course there are other possibilities, there are other problems that could arise with the form of wording; some people may see it as a problem, others may not. One of the great things about the 1937 Constitution is that whereas it has its faults and there are aspects of it many of us would like to see reformed, it is, in its own way, a vibrant, living, legal document that has been used by the courts to declare many constitutional rights that the courts have regarded as implicit in the Constitution that were probably never envisaged by the drafters of the  Constitution, many of which probably would come as a surprise to the Members of this House who had the privilege of being here when that Constitution was debated.
There have been all sorts of rights found to have been implicit in the Constitution — the right to travel, the right to bodily integrity, the right, to which I referred earlier, to marital privacy. The courts have gone out of their way to declare the rights of children. The courts use the article to find a very basic area in our taxation law, that we could not tax married couples living together at a greater rate than two single people living together. All of these are rights that the courts have interpreted as implicit in our Constitution.
I wonder what other rights could be taken out of the wording of this article and be found, at a future date, as implicit in our Constitution? If we look at this article simply, bearing in mind all I have said about the effects it could have on our abortion and family planning laws — effects I believe which are highly undesirable — we find that there are one or two desirable implicit rights that could be found if we enacted this article that I am not sure members opposite are aware of. I believe there are many people on this side of the House who are opposed to the death penalty. I include myself in that number. I believe also there are a number of Members on the opposite side of the House who take a similar view. But it was the policy of the Fianna Fáil Party, during the period in office of the last Coalition Government, to make it quite clear that they were in favour of retaining the death penalty.
If we enact in our Constitution an article that provides for a right to life of the unborn it is not a great leap of intellectual mountain-climbing for our courts to interpret that article as implicitly also giving a right to life for the born. Arising out of the right to life of the born, without the difficulties of balancing rights, in the context of the right to life of the mother, we would have a fairly absolute right to life for all of those living in the State. I would welcome that development; that is not something I would quibble with. That  type of right, however, would result in what remains of the death penalty in our criminal law being found to be unconstitutional as well. In fact, finding that as an implicit right resulting from this constitutional amendment, is a far more likely right — indeed is one of the few desirable possibilities arising from this amendment, as presently worded — and could end capital punishment in this country. I wonder if Members opposite have thought of that? If they support that, I am delighted to know about it but I wonder do they understand that is a possibility.
Very often in this House we conduct what can best be described as a dialogue of the deaf. We engage in debate. We hope, with a bit of luck, we might get reported the following day. Perhaps if one says something either outrageous or vaguely intelligent one may find one gets one's picture in the paper. By and large what goes on in this House by way of debate is irrelevant because the courses of action are pre-determined by the Government of the day.
This is an issue on which I believe all Members of this House are united in one purpose, that is their opposition to abortion being legalised in Ireland. I believe there is also a majority of Members of this House who would wish to see our existing family planning laws not curtailed, probably a majority would wish to see them liberalised, made more acceptable and sensible. To all of those, and in particular to Opposition Deputies, I would ask them seriously, as legislators, to apply their minds to what is contained in the present wording that it is proposed be included in the Constitution, and to see that those people who are sounding a warning about this particular wording are genuine in what they are doing, that they are not trying to score political points, or get out of undertakings that have been given but to ensure that a major mistake will not be made by Members of this House simply because one or other side is involved in some type of tactical political battle.
I would appeal specifically to Members on the opposite side of the House who are distinguished by their knowledge of  law, who are aware of the way the Constitution and our courts work in practice, to state their views on this amendment. There is a well-known academic lawyer in the Fianna Fáil Party, there are senior counsel and respected solicitors — Deputy David Andrews, Deputy Michael O'Kennedy, two respected senior counsel who I believe would share many of the worries I have expressed. There is then Deputy William O'Dea, a well-known law lecturer who has gone to press on many occasions seeking to reform antiquated areas of our law and who well understands the workings of our Constitution. There are also Deputies Colley and O'Malley, qualified solicitors, who before they came into this House worked as lawyers, men who in this House have contributed to the development of legislation over the years. If any of those people sat down and examined the wording of this amendment I feel sure they would share many of the worries I have expressed about it. All of us as legislators have a duty to do that.
So far I have addressed my remarks to the wording of the present amendment. It has been stated by the Government that work is being carried on to prepare an alternative form of words and it would not be appropriate for me to address myself to that issue since I await the alternative form to be proposed. I wish to say something about the nature of this referendum, the nature of the campaign which preceded this debate and is at present taking place. It has been said by many people of goodwill that there is a sectarian element involved and that the Article before the House could be regarded as sectarian. I do not believe it was the intention of the people who sought a constitutional amendment to be divisive or sectarian or that they mean to approach it from a sectarian basis. Neither do I believe this was the intention of the person who drafted this Article or of Deputy Haughey, Deputy Woods, the Fianna Fáil Party or the present Taoiseach to be divisive or sectarian. As a lawyer who has been involved in many of the recent constitutional cases before our  courts, I believe the problems I have outlined bear no relevance to sectarianism of any nature whatsoever. They are real problems related to real social issues which we must fully and properly consider in this House and on which there will be different views right across the religious divide.
There is a real problem with the nature of the campaign that has been conducted by some people. It is a continuing problem which I believe will be exacerbated if and when this legislation goes through and a referendum campaign gets under way before polling day. Let nobody be in any doubt that religious borders and barriers are being drawn up. We have already seen different Members quoting what representatives of different churches have said. We have had Papal Encyclicals and quotations from different members of the Protestant faith, Church of Ireland, Methodist and Presbyterian, by Members of this House trying to confirm that this is not a sectarian issue because there is someone in each of the different religions who supports the wording of the present amendment.
I do not believe that this amendment has a religious or sectarian bias. Indeed, it could be interpreted in a way that would permit abortion in circumstances that would be anathema to every religion in this country but if and when a referendum is held, be it on this or any other wording, there will be a difficulty. I believe we will see public statements of a nature that have never been made since the foundation of the State. I believe the type of campaign some people will run will result in divisive and inflammatory public comment being given an aura of credibility and reportage which would never heretofore have been given. The type of campaign which could follow in the course of such a referendum could do serious damage to the body politic of this country, and I believe it could result in this whole issue descending into the realm of political mythology as other issues have in the past. We have plenty of such issues in our political mythology which fuel allegations of sectarianism or of domination of one or the other parts of this island by the major religions. Most  people no longer even remember what the mother and child scheme was about but it is part of our mythology.
The Tilson case is part of the political mythology of all members of minority faiths. It was a law case in which a judge upheld a pre-nuptial agreement between a mother and father or a husband and wife whereby they agreed that children be brought up in the Catholic faith. The court allowed those children to be brought up in the Catholic faith and the parties to the marriage were a couple of mixed religion. That case descended into our political mythology because a High Court judge made intemperate remarks about what was then the special position of the Catholic Church. What still is not noticed is that the case eventually found its way to the Supreme Court and the judges there totally disagreed with what had happened in the High Court. The Tilson case, rather than being part of the political and religious mythology of our country, should be part of the history of women's lib because it did not seek to support a religious divide but gave an equality of rights to mother and father or husband and wife of a nature which did not then exist in the United Kingdom or in many other countries.
I believe that in this campaign people at the extreme end of those who propose this amendment will make remarks of a nature which up to now would not have been treated seriously and would not have been reported. They will generate an atmosphere which will do great damage to the country both nationally and internationally and to all of us in this island who have for so long talked about reconciliation with the North and the closing of the divide that exists. I say this not because of the issue. I believe that the vast majority in the North, whether Protestant or Roman Catholic, are as much opposed to abortion as are people in the Republic. There is a danger of our being treated to some form of hysterical campaign in favour of this referendum which will result in swords being drawn and a reopening of the religious divide which does not really exist any more in the Republic.
I think I should say something about  one of the organisations who have sponsored this amendment, the Society for the Protection of the Unborn Child. I believe that organisation have conducted a campaign of vilification against people inside and outside this House which the vast majority of people find disgusting.
Mr. Shatter: It should go on the record of this House that the campaign is disgusting and should not be taken seriously. I believe they have deliberately mounted campaigns against individuals who are no more in favour of abortion than they are. They have mounted these campaigns because they are unwilling to listen to other people, unwilling to rationalise or listen to advice they are given and unwilling to accept the bona fides of people who are genuinely against abortion but genuinely concerned both about the wording of this Article and the consequences of a referendum campaign. It is that organisation I most fear doing the type of damage I have talked about, opening up the religious divide in the Republic of Ireland in a manner we have never previously seen. Members of that organisation have been in the habit of using language of a nature one can only describe as deplorable and unnecessary in making the case they sought to make. It is right that Members should express their views about the type of campaign that organisation has conducted.
In the context of that organisation, and some of the other proponents who have talked about the great emergency that requires the amendment being inserted immediately in the Constitution, I have a healthy degree of cynicism as to their true commitment. While they have expressed this great concern about the unborn they have not expressed similar concern about the born. We have not heard anything from them about our antiquated and outdated children's legislation or of the need to reform the laws on illegitimacy. There is an obvious need there if we are genuinely concerned about abortion and wish to remove pressures from women who become pregnant to ensure that they do not go to England,  or elsewhere, to obtain an abortion. Surely it should be in the forefront of their campaign to abolish the law on illegitimacy. If they are concerned about children, born and unborn, why have they not said something publicly about our adoption laws? We have laws which have destined more than 1,000 legitimate children born to married couples who do not want to have anything to do with them or are incapable of looking after them being required for the rest of their childhood to stay in institutions. The lucky ones have the possibility of fosterage. We have not heard concern about those children or calls for reform in our law on adoption.
We have not heard anything from them in the course of the campaign in the last two years about another area that is of particular concern to the right to life. Less than 12 months ago we all heard of two horrific instances of young children being battered to death by their parents, of the parents being prosecuted and sentenced to relatively short terms of imprisonment. The Minister for Health at that time, Deputy Woods, said that part of the problem was that our legislation dealing with children was inadequate. A report was produced subsequently indicating that a major part of the problem was that our health board and social work procedures were inadequate. Have we heard the organisation that is interested in protecting life speaking out about the right of children who have been born to protection, about the right to adequate legislation dealing with children to ensure that intervention takes place and results in children's lives being saved? Have we heard them talking about the need for better social work training and a greater consciousness on the part of health boards and medical personnel in regard to this problem? We have not heard anything in relation to those areas. We have heard a purely negative concern about abortion, a negative campaign to ensure that the law remains as it is which it would do even without the campaign, without seeking to remove the pressures on women who seek abortions never mind about the area of children who are  alive and in need of better legislation. We are all agreed that if this amendment is included in the Constitution it will not in any way affect the abortion trail to England.
Why do those organisations not use the same energy to raise similar enormous sums of money that have been raised so far in order to mount major advertisements on the front pages of newspapers calling for reform in our laws on illegitimacy or our affiliation laws to ensure that the unmarried mother can get proper sums of money for the support of her child from the father rather than the paltry sum she gets or being prevented by inadequate and archaic laws from fully processing her legal rights? What about reforming the allowances for unmarried mothers and the social welfare benefits applicable in this area so that a woman who becomes pregnant does not have this financial pressure on her that makes her believe that not only will she be rejected by society as an unmarried mother but that she will be put under a financial burden which no Member would regard as acceptable? Why have those areas not been highlighted? If we are genuinely concerned about preventing abortion why has nothing been done about those areas by any of the groups I mentioned? I do not know the answer but I would like to hear an answer because there is no reason why when a campaign was mounted for a referendum that is not urgent some of the more urgent areas I mentioned are not tackled.
It is accepted by many Members that there is a need for a general review of our Constitution. I am disappointed that on the first occasion since I became a Member that I have had an opportunity of debating the Constitution that this is the sole area that can be discussed. Many recognise the need for a general constitutional review and I accept that by and large our Constitution is sound but there are only a few Articles in it that need to be looked at again to ensure that the Constitution reflects the values, aspirations and desires of all our people as we enter the last quarter of this century. A review of our Constitution should not be conducted by a committee of lawyers but  by an all-party committee of this House and the Seanad. I hope such an all-party committee is formed shortly. I hope that committee will get an opportunity to debate the Constitution Articles that are crying out for reform, some of which no longer bear any relation to the realities of our aspirations or our national life. Indeed, some of them exacerbate the real social problems we have.
Like all Members I hope that the new wording to be proposed for inclusion in the Constitution will be discussed here. I hope all Members will accept that the wording proposed now is not appropriate and that when the new wording is published we will have a calm and rational examination of it and its likely consequences. There should be consultations with all groups who have an interest in this area, including those involved in the pro-life campaign, the major and minority Churches. During the course of such a debate members of the public should be given time to discuss the matter through the media. The wording in the amendment has been with us for four months but it is only in recent days that it has been realised that it is not suitable. There is a danger that if a new form of wording is proposed we might rush into accepting it for the purpose of, as politicians, getting a difficult issue out of the way and getting on with other work that has to be done. There is, indeed, a need to get on with other work and I hope that before the summer recess we will get through the House much of the social legislation that is long overdue and for which there is no longer an excuse for failing to introduce it.
We should allow time for reflection and discussion of any new wording that may be proposed to ensure that we do not put a form of wording to the people in a referendum that will only result in major problems for us all and for future generations.
Like other Members of this House I await with interest the new wording the Attorney General's office and the Government are preparing. I want to sound a note of caution. No matter what wording is produced, it must be given time and it must be considered. I hope  this whole issue will now be considered and that any new wording will be considered in the spirit meant. This issue should not—and it would be a disgrace if it did—become a political football with the Government or the Fianna Fáil Party seeking to score points against each other on the back of an issue which is sensitive. about which Members of this House have great concern, and which must be dealt with in a rational, considered and sensitive manner.
Minister of State at the Department of Labour (Mr. G. Birmingham): We have spent some time in this Dáil session debating the question of Dáil reform. This was a debate which drew interest from all sides of the House. In those circumstances, one cannot but be saddened that, in a debate on this issue which we have been told is a matter of such fundamental importance, and has so enthused the Opposition, that not a single member of the party now in opposition can find time to come into the House to consider such an issue.
Mr. G. Birmingham: I stand corrected. In the past they have had a somewhat ambivalent position in this House and it is hard to get used to their current role. I should have said no member of the Fianna Fáil Party is present.
It is worth beginning by asking ourselves what we expect of our written Constitution. It seems to me that we adopted a written Constitution, like many newly-independent states, to assert what we saw as different and to assert in a very public way from where the State derived its authority to legislate and what was the source of the authority in the State. That was one function.
The other function we saw served by our written Constitution was that contained therein would be a number of legal precepts which we felt were entitled to a higher status than ordinary law and which were, to that extent, more difficult to change or to ignore. Therefore, our Constitution  lists a number of rights: the right to life, the right to personal property, the right to freedom of speech, the right not to be arrested and so forth.
It has never been suggested that it is inappropriate that such a written Constitution should consider those issues. It would seem to me to be a logical consequence of that, that if it is appropriate that those rights should be enumerated in the Constitution, it is equally right that the Constitution should address itself to what categories of beings are entitled to derive rights under the Constitution.
It seems to me to be appropriate that a written Constitution should spell out exactly what categories of beings — and I use as neutral a word as I can—are entitled to benefit under the Constitution. Should rights be confined to citizens? What is the position of aliens? Are rights to be confined to those who have been actually born, or what is the position of the unborn? What is the position of a limited liability company? These are all areas appropriate to the Constitution.
At the moment the Constitution is drafted in the most restricted form possible in that it purports to confine rights to citizens. In doing so, it does not accord with the European Convention on Human Rights which is drafted in wider terms to speak of all persons. That is not an academic point. In at least two instances the Supreme Court considered the question of whether or not the wording of the Constitution excludes from constitutional protection non-citizens — in one instance at the suit of an alien in a case arising under the Adoption Acts, and in another instance they considered what constitutional protection it afforded to limited companies when the controversial Marts Bill was contested.
I believe our Constitution ought to be wider than simply affording rights to citizens.  In those circumstances it is appropriate that at the correct time the Constitution should be broadened to afford protection to all who live in this country, citizens and aliens, and to all who are at risk, born and unborn. I say that because the argument has been made that the suggestion of affording constitutional protection to the unborn is inappropriate.
Two arguments are advanced for this, basically. One is the suggestion that it is inherently sectarian. With respect to the proponents of that argument, it seems to me to lack logic. If it is regarded as appropriate that legislation should cover these areas, and it is—nobody has suggested that the 1861 Act should be repealed, and even in those countries with very liberal abortion laws, in all cases abortion is subject to some form of statutory control—I do not see how the case can be made that it is inherently improper for such an issue to be dealt with in the Constitution.
The other suggestion is that somehow or other this is an area of particular controversy on which there might be differences of opinion and, for that reason, it is inappropriate to find a place for it in the Constitution. Again, with respect, I fail to see the point. If the Constitution is to confine itself to simply setting out the subjects on which we are all agreed, and on which unanimity exists, and on which there is a total consensus, we might as well save ourselves some money by telling the Stationery Office to cease printing it. If that degree of unanimity and consensus exists, there is no point in having a written Constitution. As the Minister for Justice pointed out in moving the Second Reading of this Bill, in a number of areas in which there is something substantially less than unanimity — such as the case of private property or trade union law — the Constitution does not opt out, does not remain silent, but expresses a clear opinion.
It is my belief that if an entirely new Constitution were being drafted tomorrow morning, the draftsman inevitably would have to consider to what categories were rights to be afforded. He would be obliged to do so by the decisions in relation  to aliens and limited companies. He would be obliged by the public debate on this issue to consider, as the drafter of the 1937 Constitution was not obliged to do, the position of the unborn. I have to say it is my view that it is in such a context that our Constitution should be extended. From the outset I have stated that I do not regard the Constitution as presently drafted as appropriate. I do not think there is any justification for seeking to confine rights to citizens, and I would wish to see the protection afforded by the Constitution extended.
That would be most appropriately done in the context of an overall review of the Constitution. That, as Members of the House are aware, was what was regarded as the optimum position by my party. We also recognised that, if a wording was to emerge, we could not “dog in the manger” it, to use Deputy Ahern's expression and refuse to look at the wording simply because it had come at a time other than that we regarded as ideal. We indicated what we expected from that wording and we expressed the hope that it would be a positive, pro-life declaration. I have stated publicly that I would have wished, if there was to be a pro-life amendment, that the opportunity would have been taken to abolish the death penalty at the same time and with the same wording, and we accepted too that the constitutional amendment to be proposed would be sensitive to the areas of medical difficulties and to the concerns of the minority Churches.
When the wording was published, it did appear that the Fianna Fáil Government had responded to these points and certainly the wording, as produced, avoided the most obvious pitfalls. We now know better. I say that not because I invite the Deputies opposite to accept as authoritative the views of the Attorney General, not even because I ask them to accept as authoritative the views of the Director of Public Prosecutions, but for this reason. Why were we asked to amend our Constitution? We were asked to do so because a group of distinguished and eminent citizens, many of them prominent in the legal and medical worlds, approached the political parties and said  they were unhappy because the Constitution is not specific and does not anywhere specifically assert the right to life of the unborn. They said there was no specific guarantee that the laws against abortion would not be found unconstitutional. At that time they graciously conceded it was highly improbable that the Supreme Court would strike down the laws against abortion but they said it was an area of unique sensitivity and importance and, in those circumstances, that they were entitled to seek certainty. That was a view that won ready acceptance from the public and this House.
The situation we have now arrived at is that the wording at present available cannot provide that certainty and cannot achieve the first objective we were asked to deliver on, which was to remove this as a possible area of controversy from the judicial field by putting the matter beyond doubt. It may be that those who originally drafted the wording that now forms part of the Bill will say they are satisfied that the views of the Attorney General are incorrect. They may say they do not agree with the Director of Public Prosecutions and, in time, they might even be proved to be right. However, for them to be proved right would require exactly what we have all be asked to avoid, which is a series of test cases in the Supreme Court as people try to define and examine where the fringes of our laws are to be found.
It is important to say that to establish that the present wording is unsatisfactory it is not necessary to persuade any Member of this House that, as a matter of probability, the Attorney General, Mr. Sutherland, is correct. All that is required is to say he might be correct because, if he might be correct, then we are into an area of uncertainty and doubt and we are opening up the way for judicial examination, which was precisely what we were asked to avoid.
I will shortly be putting the views of the Attorney General on record and considering them in some detail but, before doing that, something must be said about the way in which the Supreme Court has been referred to throughout this debate. If there is one attitude that seems to unite  some of the more extreme supporters of the pro-life cause and the most extreme supporters of the anti-amendment cause, it is a lack of respect for the Supreme Court and an apparent consensus that the Supreme Court lacks even the most basic common sense. On the one hand some of the supporters of the pro-life cause suggest that the Supreme Court would be likely, if invited to do so, to strike down our present 1861 Act and, by doing so, make abortion freely available. I regard that as improbable in the extreme. Deputy John Kelly, a noted constitutional lawyer, has already addressed himself to this point in the debate and I do not want to go over the same ground at any length except to say that on those occasions when the Supreme Court or indeed judges of the High Court have addressed themselves to this issue, far from giving any hint whatever that they proposed at an appropriate moment to strike down the 1861 Act, their observations indicate that, given a chance, they would declare that the unborn does in fact enjoy constitutional rights.
Deputy Kelly has already referred to observations in two cases by Mr. Justice Walsh in this regard and Mr. Justice McWilliam in the High Court, who is, interestingly, a member of the minority faith, has made an exactly similar statement. The anti-amendment group, on the other hand, seem to believe that if the Supreme Court is given a chance that, abandoning all common sense, they would accept an interpretation which would put mothers' lives at risk even though another interpretation might be open to them or, alternatively or in addition, they would adopt an interpretation which would legalise abortion up to a very late stage in pregnancy or that they would outlaw many of the contraceptive practices now available here, contraceptive practices which are available to people here precisely because of the action of the Supreme Court. I dislike intensely the manner in which people on both sides of this case have treated the Supreme Court with scant respect.
I want to look now at the wording and, in doing so, to say again what our brief  was. Our brief was to put this area beyond doubt. Nobody suggested for one moment that the 1861 Offences Against the Person Act was unsatisfactory. As far as I am aware, not even the most enthusiastic members of SPUC have suggested that any changes in that legislation are required. On the reverse side of the coin, apart from a tiny minority of people in the Women's Right to Choose group, nobody has suggested that our law should be changed to provide for abortion. Our instructions, therefore, as a Legislature and our commitment to the pro-life group was to find a wording which would put the status quo beyond challenge and remove the area from the scope of judicial controversy.
How does the present wording measure up? At this stage I think it would be appropriate to put on the record of the House the observations of the Attorney General which have appeared in summary in the newspapers. He stated:
In summary: the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers, and more specifically the judges who will have to interpret it. Far from providing the protection and certainty which is sought by many of those who have advocated its adoption it will have a contrary effect. In particular it is not clear as to what life is being protected; as to whether “the unborn” is protected from the moment of fertilisation, or alternatively is left unprotected until an independently viable human being exists at 25 to 28 weeks. Further, having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of “the unborn” will be compelled by the wording to conclude that he can do nothing. Whatever his intention, he will have to show equal regard for both lives and his predominant intent will not be a factor. In these circumstances I cannot approve of the wording proposed.
Mr. G. Birmingham: I am suggesting that the document from which I am quoting is available. In doing so I welcome the arrival in the House of Deputy Woods and the fact that Fianna Fáil are now going to take some interest in the debate at this late stage of the afternoon.
 The use of the word “unborn” in the proposed Amendment is significant because it has not to my knowledge been used before in a similar context, that is, as a noun standing on its own. The word is usually taken in association with “child”, “person” or “human being”. The word, used as a noun, is not in fact defined in any of the standard English dictionaries. The reason why it is used in the proposal, without any supporting noun, deserves detailed consideration as this is the word which defines the class to be afforded protection.
In the event that the Supreme Court is called upon to construe the proposal, it could come to a number of different conclusions as to the definition of the class which is afforded protection. Undoubtedly a view which might commend itself to the court is that all human beings fall within the ambit of the amendment and that a human being comes into existence when the process of fertilisation is complete. It is, I believe, the position of many in the community that the inalienable right to life attaches to the newly fertilised ovum prior to implantation. The consequences of such a definition of the commencement of human life are matters on which medical opinion would be required.
If, as would appear to be the case, it is correct to state that certain contraceptives can operate after fertilisation, then these would be abortifacient if human life commences on conception. Thus the importation, dissemination and use of such contraceptives would be prohibited and as an example, the use of the “morning-after” pill in the treatment of rape victims will not be permissible nor will the use of such contraceptives in certain conditions of the health of a woman — for example, valvular heart disease and diabetes.
As I stated earlier, there are however  other conclusions that the Supreme Court might reach in defining what is meant by “unborn”. It might simply conclude that the question cannot be answered definitively. In considering the rights, if any, attaching to life before birth in the United States the Supreme Court there determined that to attempt to reach a conclusion on the issue would be to speculate because “those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus”. Other conclusions might be that human life commences at the moment of implantation of fertilised ovum or when brain activity commences.
Before proceeding with the quotation I will pause to say that as I understood the speech of the Opposition spokesman he made the point that the wording was drafted in the form now before us to try to avoid getting into that area of finesse and it was felt appropriate that the amendment should not come out in favour of any one of those possible beginnings of life. I am open to correction on this.
If that is a fair summary then I understand precisely what was in mind but it seems to me to be the precise opposite of what we were asked to do. If that is what the amendment is trying to do, then effectively we are saying that we should put a form of wording into the Constitution and leave it there and any difficulties that arise in interpretation are a matter for the courts at a later stage. It is precisely to prevent the courts being involved at a later stage in determining issues such as when life begins or at what stage protection is afforded that we were asked to draft the amendment. For that reason the amendment, as drafted, fails to measure to the brief we were set. I will continue with the quotation:
However, the point of time for which the most compelling legal argument could be made, other than the time of fertilisation, as being the moment of commencement of protection, could be said to be the time when the foetus becomes independently viable. I  understand that this is probably at some time between 25 and 28 weeks of pregnancy. Such a construction could be supported by an argument that “unborn” could be regarded as being applicable only to something capable of being born. The word “unborn” used as a noun must, as a matter of language, mean “unborn person”, “unborn child” or “unborn human being”. It could be argued that neither a fertilised ovum, a fertilised and implanted ovum, an embryo or even a foetus prior to the time when it is independently viable, would come within this definition. The consequences of such a finding could be that there would be no constitutional prohibition on abortion prior to this stage of pregnancy.
That is a view that is being put forward. I have no doubt that there are eminent lawyers who would say that that is not the correct view, that it is not what the Supreme Court would decide were they invited to interpret the wording. For precisely the same reason I do not believe they would strike down the 1861 Act. The Supreme Court as constituted at present would interpret the amendment in that matter as a matter of probability. The advocates of the amendment, certainly the Association of Lawyers for the Protection of the Unborn with whom I have been associated from time to time, have readily accepted that they do not expect the Supreme Court as constituted at present to do anything of the sort in relation to the 1861 Act. They are concerned to guard against future developments. Deputies who were in the House when Deputy Kelly was speaking will be told that he gave substance to this argument when he referred to the change of public opinion in relation to contraception and what effect that has had or would have had on anyone who would have come to the courts to challenge the Criminal Law Amendment Act.
Mr. G. Birmingham: I support the constitutional right as defined by the Supreme Court for married couples to plan their families. Be that as it may, Deputy Kelly made the point that had Mrs. McGee come to the Supreme Court in the fifties and attempted to assert that there was a constitutional right to use contraceptives, it was unlikely, Deputy Kelly said, that she would have got a solicitor or counsel to appear for her. In the sixties it would have been very much odds against and by the seventies she won her case decisively. Because the possibility exists that legal opinion may change over the years an amendment to the Constitution to prevent abortion is appropriate. I have no doubt that the Supreme Court if asked tomorrow what their views on abortion are would say emphatically that abortion is not part of our legal code. I have very little doubt that they would say that anyone attempting to bring in a law providing for abortion would himself be acting unconstitutionally. I have no doubt that that is what a Supreme Court presided over by Chief Justice O'Higgins would do. Because I am not a prophet I do not know what Supreme Court judges asked to preside over the same question in 50 years time would decide.
Similarly, I think I can guess what the Supreme Court presided over by Chief Justice O'Higgins would decide if asked to interpret the meaning of the word “unborn”. At the very least I think I know what they would not decide. I do not believe that the Supreme Court as constituted at present would interpret the word “unborn” so as to provide for abortion up to 25 weeks or 28 weeks, but I do not know what they might do in 50 years time. If there is a fear — this has motivated the case for an amendment — that at some distant stage in the future the Supreme Court, no doubt reflecting changes in public opinion, might interpret the silence of the Constitution as drafted at present so as to provide for abortion, is it not equally logical that a Supreme Court which might be so tempted would be equally inclined to seize on any ambiguity in an amendment that we would put in so as to achieve the same result? If those who advocate the amendment argue, as they have argued with cogent and even coercive logic, that we cannot foretell what a Supreme Court would do in 50 years time, it behoves us equally to make sure that what we put into the Constitution is not itself ambiguous. When we consider what is ambiguous or what might have to be condemned as ambiguous, we must consider it not just in the context of what decision a court would be likely to take today but at some distant stage in the future. If we were concerned only with what a court would do today there would be no need for an amendment at all. The Supreme Court as constituted at present would not — I say with great confidence — introduce abortion into our legal system and as an unenumerated right.
I will proceed with the next point raised by the Attorney General. The next issue raised by the proposed amendment is the meaning and effect of the words “with due regard to the equal right to life of the mother”. The meaning of “with due regard to” is entirely unclear. These words are generally perceived to allow for, at least, termination of the life of the foetus in the cases of ectopic pregnancies or cancer of the uterus. The words “with due regard to” have been understood by many to suggest that the right to life enjoyed by the unborn was to be confined in some way. That interpretation is in my opinion incorrect. The words “comh cheart” in the Irish text is literally “the same right”. The right to life of both the unborn and the mother is stated in the proposed text to be equal and in these circumstances I cannot see how it could be possible knowingly to terminate the existence of the unborn even if such termination was the secondary effect of an operation for another purpose. The issue  of intention does not arise in the proposed amendment and thus, it seems to me, that even if termination of the pregnancy is an incidental consequence of an operation to save the life of the mother it would be prohibited. The correct logical interpretation is that the right to life for the unborn is absolute. If a doctor were to be faced with the choice as to saving the life of one and thereby terminating the life of the other, then I believe that the only lawful conclusion to this dilemma would be that he could do absolutely nothing which infringed on either right. It is only where there is no possibility of the foetus surviving even without the doctor's intervention that no difficulty will arise.
Whatever about such a clear-cut factual situation, the difficulty of applying the position to other circumstances will be considerable. There may be cases where a doctor will have to consider whether he can treat a prospective mother for an illness which might otherwise shorten her life expectancy if this treatment will threaten the life of the foetus. The proposed amendment will in my view tend to confuse a doctor as to his responsibilities rather than assist him and the consequences may well be to inhibit him in making decisions as to whether treatment should be given in a particular case.
In conclusion, the consideration of the  points which I have raised is of particular importance having regard to the difference in principle between an ordinary legislative provision and the statement in the Constitution. Whilst a view may be formed as to the likely interpretation of a given constitutional provision at a particular time, such an interpretation is open to review in the future. One is considering in this instance a provision which is intended to stand up to the test of time. This type of constitutional provision by its nature is a statement of broad general principle. The fact that the interpretation of such provision is often a complicated and difficult task is evident from the very many reported judgments on the Constitution which have been delivered by the Supreme Court. I draw attention to the ambiguities in the proposed draft because to do otherwise might suggest that the words are susceptible to only one interpretation.
It is further to be borne in mind that this constitutional provision, whilst a statement of general principle, will be susceptible to enforcement in various ways through the civil and criminal law. Uncertainty as to its meaning and effect could have the most serious consequences.
|Last Updated: 14/09/2010 09:26:30||Page of 42|