An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Coiste . Eighth Amendment of the Constitution Bill, 1982: Committee Stage .
Wednesday, 27 April 1983
Dáil Eireann Debate
An Ceann Comhairle: : Is it proposed to postpone sections 1 and 2 until the Schedule has been disposed of? In the case of a number of previous Bills to amend the Constitution this procedure was adopted. It was done to avoid duplication of debate on section 1 and the Schedule.
3º Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of a law on the ground that it prohibits abortion.”.
I move amendment No. 1:
 In page 4, after line 20, to insert the following Schedule:
3º Ní cead aon ní dá bhfuil sa Bhunreacht seo a agairt chun aon fhoráil de dhlí a chur ó bhail ná a fhágáil gan feidhm ná éifeacht ar an ábhar go dtoirmisceann sí ginmhilleadh.
3º Nothing in this Constitution shall be invoked to invalidate, or to deprive of force or effect, any provision of law on the ground that it prohibits abortion.”.
When I spoke at the conclusion of the Second Reading debate, I told the House that a decision had been made by my party that I should introduce this kind of amendment.
I gave the reasons then and I do not think that I should delay the House by unnecessary repetition. However, I think it is necessary that a few points should be clarified.
The first point concerns the precise wording. In my speech at the conclusion of the Second Reading, I said that the wording would be on the lines of the words I then used. I quite deliberately left open the possibility that some minor change, not altering the sense of what was proposed, could be made before the formal amendment was put down.
As it turned out, the Attorney General was quite satisfied that the wording that I had mentioned on Second Reading needed no change whatsoever — that it was entirely adequate to achieve its objective and that the technical criticisms that had been made about the alleged insufficiency of the word “invalidate” were not well founded. Nevertheless, because the criticisms had been made and were being persisted in, I did not think it right that we in this House should embark on a futile and time-wasting argument about a side-issue and, as the Attorney General was satisfied that a few words could be added without harm to the meaning, the amendment that I am now formally putting to the House includes,  as well as the word “invalidate”, those extra words, that is, the words “or to deprive of force or effect”.
I think I should at this point refer to the statement issued last evening by the Pro-Life Amendment Campaign — PLAC — about the wording that I am proposing. It is unnecessary for me to comment specifically on that statement in so far as it deals with the substance of the proposal, as the general comments that I shall be making are relevant to it. I shall refer, therefore, to the technical criticisms only and, as far as they are concerned, I can sum up my position by saying that I cannot accept them as valid.
This amendment would be an integral part of the Constitution. The phraseology that nothing in the Constitution shall be invoked to invalidate certain kinds of laws does not and cannot possibly be held to mean that such laws might indeed be unconstitutional but that no procedure will exist to test the matter. The prohibition on the invocation of the Constitution, being itself a part of the Constitution, clearly is more than a procedural bar — it expresses the intent that such laws are not unconstitutional.
This being so, I suggest that there is not the slightest possibility that the Supreme Court could, on a reference of a Bill pursuant to Article 26, take a stance different in this respect from that it would have to take if the Bill had been enacted. To say otherwise is to say that the Supreme Court would give an interpretation contrary not only to the clear intent of the amendment but also to commonsense.
As for the reference to the 1922 Constitution, the position is quite simple. The point PLAC make was certainly not overlooked, and I think they might reasonably have assumed that it was not overlooked. The fact is that it is only a purely theoretical point and does not take account of the actual content of the 1922 Constitution. If there is a risk that the 1861 Act could be declared to be inconsistent with the Constitution — by which of course I mean the present Constitution — that risk derives from the fact that there are, in that Constitution, certain  Articles the precise scope of which is as yet undetermined by the courts and that these Articles may, for instance, implicitly recognise a right to privacy which would take precedence over the 1861 Act. There are no corresponding provisions in the 1922 Constitution so the possibility of conflict or inconsistency could not arise in that context. I do not believe that it would be right to clutter up the terms of the present amendment with useless verbiage that has no relevance, given the facts to which I have referred.
I would also say that, while I can understand the disappointment of PLAC with recent developments, I would appeal to them not to add further to the difficulties and divisions by criticism which, in its content and tone, goes beyond what could reasonably be justified. I do not object in any way to their saying what they feel they ought to say about substantive points but I would seriously urge them not to seek to make issues about mere technicalities on which there need be no disagreement.
Turning now to the substance of the amendment, may I recall that, when referring to it on Second Stage, I adverted to the obvious fact that it does not seek to tie the hands of the Oireachtas, something that had already been noted in the newspapers that morning, in the context of my party's decision to sponsor such an amendment. To my surprise, Deputy Woods subsequently referred to what I said as a “damaging admission”. I wonder if the Deputy considered the implications of what he was saying. It is my function, as I see it, to put the facts as clearly as I can before the House. To speak, in this context, of my making admissions suggests that, for some unexplained reason, the Deputy thinks I should have come in here and tried to pretend that the amendment is something different from what it is. Not only that but it suggests that, if I had done so, Members of the Dáil might not have noticed that I was misleading them. As I say, I find this kind of comment surprising.
However, the point that I would like to make clear, as I formally propose this amendment, is that, when I said that the  text as now proposed would not exclude the possibility of legislation by the Oireachtas, I meant only what I said and no more than that. I am saying only what indeed is obvious, namely, that this text does not exclude that possibility. I am not in any way expressing the view that nothing else in the Constitution is to be interpreted as recognising a right to life before birth. Different people have different views on that question — that is, whether the Constitution already has an implicit recognition of a right to life before birth — and it is sufficient for my purpose to say that there are distinguished legal authorities amongst those who clearly believe that such a right already is recognised in the Constitution.
The reason I advert to this now is, I believe, a very important one. It will be common ground that, if such a right was known with certainty to be recognised already, no amendment would be necessary — neither the one sponsored by the Opposition nor the one now proposed not any variation on either of them. It may fairly be asked whether there is another side to this. Granting that there must be a very real possibility — to put it no higher — that the courts would, as matters now stand, find in the Constitution a right to life before birth, might they feel precluded from doing so if this amendment were passed, seeing that the implication of their decision would be that the amendment was unnecessary? In fact, that question has already been effectively answered in the negative, because the provision which is now identified as Article 40.4.3º of the Constitution, and which concerns habeas corpus, was inserted by way of amendment and, in a case that subsequently arose, the Supreme Court gave a decision which, by implication, showed that the amendment had been unnecessary. It was unnecessary because the substantive part was shown to be already implicit in the Constitution — as part of something wider — and because the procedural part could have been effected by legislation.
It follows that the consideration that an amendment would be shown to have been unnecessary would not be regarded by the Supreme Court as something that  would preclude them from finding in the Constitution a right that they would have found in the absence of such an amendment. Accordingly, I suggest that the House can be fully assured that nothing in this amendment can possibly be interpreted as interfering with any existing rights in the Constitution.
There remains the important question: what is wrong with the existing wording? Deputies are, of course, already by now well aware of what has been in the public press and of the fact that, on the best legal advice available to us, the existing wording has serious defects.
Briefly, those defects are twofold: first, that the expression “the unborn” is very ambiguous; second, that the reference to the equal rights of the mother is insufficient to guarantee that operations necessary to save the live of the mother but resulting in the death of the foetus may continue.
On the first point, it is scarcely necessary to say that objection is not being raised simply on the basis that there is a certain degree of ambiguity. Some ambiguity is probably inescapable — language is not a precise instrument. The criticism in this case is the extent of the ambiguity, a criticism which is strengthened by the fact that it was obviously accepted in order to avoid argument.
On the second point, I would like the record to show very clearly what is being said by way of criticism — and what is not being said. It is not being said that the wording would be held to make the operations in question unlawful. Nobody could say with certainty what interpretation a court might put on the words. What is being said is that, on the ordinary meaning of words, that should be the interpretation and that therefore there must be a definite risk.
Now, the position in which we find ourselves is that I am sponsoring this amendment and, in effect, the Opposition are sponsoring the existing wording. I have sought to answer the questions that arise on my side. If we are to have a reasoned debate, somebody on the Opposition side should, I suggest, undertake to answer the serious questions that arise on their wording.
 It has been said that no court, unless absolutely compelled to do so, would put such a construction on the words, given the fact that these operations are in accordance with long-established practice; and that it cannot be contended that the courts would be compelled to do so since an interpretation more favourable to the mother is at least an option open to them.
My questions are these. First, is it not the case, clearly and beyond any argument, that those particular operations, legitimate and necessary though they are, protect the life of the mother in a manner that in some cases must lead to the death of the foetus and that, in other cases, puts that life at serious risk? Does it not follow that, while the death of the foetus is certainly not intended, in the ordinary meaning of the word “intended”, it is nevertheless a fact that, since the death of the foetus is a foreseen and even certain consequence, the action being taken gives priority to the mother's right to life? Now — and this is the crunch question — if the intention is, as no doubt it is, that these operations are not to be unlawful, why does the draft not say so? Why does the text use language that its sponsors hope will be interpreted in a particular way by the Supreme Court but avoids expressing that intention with the kind of clarity which is attainable? I should like to make it quite clear that I accept that all concerned hope, and indeed may feel confident, that that is the interpretation that the courts would opt for. But the question remains: why does the text not say what its sponsors intend?
I do not know what the thinking behind the choice of these words was. The wording was, as we know, chosen by the former Government. I have already explained to the House that the records available to me do not contain any analysis or any background information that would throw light on it. I suggest that it is up to somebody on the Opposition side to clarify it, even if only so that in future years somebody may be able to read the record and find the answer.
Dr. Woods: : The Minister's speech is very disappointing. He would appear to be passing responsibility for this amendment to this side of the House and asking the questions of us. I would have thought that it was the responsibility of the Minister to express clearly the necessity for a pro-life amendment and, if he is not proceeding with the pro-life amendment, to give us the reason for that change.
The Minister has told us that at the conclusion of the Second Stage debate he told the House that a decision had been made by his party that he should introduce this kind of amendment. Again, we are back to the question of the status of the Minister in relation to the amendment he is bringing forward. Is it an amendment on behalf of his party or on behalf of part of that party or of part of that side of the House or is it an amendment of the Government as a whole? I disagree with the Minister on the basic principle. He tells us that at the conclusion of the Second Stage he told us that the wording would be on the lines of the words he used then. He goes on to say that there was some minor technical change introduced but that apart from that the wording is on the lines used by him at the conclusion of his speech. If we take the words that have been presented by the Minister, we find that there is a substantial departure from the principle enunciated by him in the first instance in bringing the Bill to the House. In May 1981 the Taoiseach gave a firm commitment in principle on behalf of his party to a pro-life amendment. One of the first problems we have with the amendment the Minister is putting at this stage is that it is not a pro-life amendment. It is not an amendment of the kind that his Leader promised in the first instance or of the kind that was put before the electorate. Consequently, it is totally deficient in that respect. The Minister would like to have us spend the day debating minor technical points but the first and fundamental element is that he has departed from the principle of the commitment given and from the commitment as contained in the general principle of the Bill and understood at Second Stage.
The Taoiseach was the person who was  first to give the commitment in principle. Some weeks later our party Leader gave a similar commitment in principle, that was to introduce a pro-life amendment. There was no political division at that stage on the issue. There was general agreement on the matter up to the election of January 1981. The Coalition were returned to office then and it is interesting to note that during their period in office no progress was made in relation to a pro-life amendment. That situation assumes a new significance as it becomes clear that the Coalition at that time either did not intend to or were not able to get around to introducing the amendment.
An Ceann Comhairle: : This is more a Second Stage speech.
Dr. Woods: : I am dealing with the principle of the Bill.
Mr. Wilson: : A statement is what we have had from the Minister.
Dr. Woods: : In effect, the Minister has changed the principle to which he gave a commitment at Second Stage.
Mr. Noonan: (Limerick East): On a point of order, if there had been a change of principle, the amendment would not have been accepted.
Dr. Woods: : That is a point I do not wish to contest since I do not wish to become involved at this stage in technicalities but I would point to the differences in principle that have arisen.
Mr. Shatter: : On a point of order, it is my understanding that Committee Stage is concerned normally with the technicalities of the wording of the Bill in question.
An Ceann Comhairle: : The matter may be left to the Chair. The Minister seemed to be dealing with the amendment proposed in the Bill and with his amendment but the Chair got the impression that Deputy Woods was dealing with the history of the introduction of the amendment.
Mr. Wilson: : On a point of order, this Committee Stage represents a totally new proposition. The Minister has made an eight-page statement which is headed “Statement”. Technically, we have a new situation. I fail to understand Deputy Shatter's intervention to say that Committee Stage is concerned with technicalities when what we have is substantively a new Bill.
An Ceann Comhairle: : The Chair realises that this is a confined, a limited debate and has no wish to encroach on Deputies. The Chair would repeat that he got the impression that the Minister was dealing with the two amendments but the Chair would rule that a history of the whole affair going back to 1981 is much more a matter for a Second Stage speech.
Dr. Woods: : The reference to 1981 is only a reference to the fact that the Bill is based on a commitment to a principle. Surely I may make reference to that without interference in the House. I consider the Minister's amendment to be a departure from that principle. The Minister and his officials may not agree but surely I have the right to make my point without being subjected repeatedly to interruptions.
An Ceann Comhairle: : The Chair has intervened only once.
Dr. Woods: : I am talking about the House.
An Ceann Comhairle: : The Chair will not permit interruptions.
Dr. Woods: : The point is that a new amendment is a departure from the principle which was agreed to and put forward by the Leader of Fine Gael. I do not need to stress that, since it is well-known publicly. There is clear evidence that the principle was accepted. The Taoiseach, in one of his statements, referred to the amendment as proposed, which is the amendment included in the Bill, as being defined in positive terms and designed to strenghten the Constitution and protection  of life. In Opposition, and at earlier stages when in Government, the Taoiseach and his party were committed to the underlying principle of a pro-life amendment.
The Taoiseach was at great pains to emphasise that fact, a matter which has been dealt with clearly in the media and during the course of the Second Stage debate on the Bill. There can be no doubt about the commitment by him to a positive pro-life amendment, such as is contained in the Bill and as was put to the House by the Government. I accept that the Labour Party expressed concern about that amendment but there is no doubt that the Taoiseach unequivocally accepted the principle of the Bill. In fact, the Minister for Justice on Second Stage said:
... in approving of the principle of the Bill, which is what the House does in giving a Bill a Second Reading, Deputies would not as far as I am concerned be committing themselves to the particular wording now proposed or any other particular form of wording ...
That statement caused considerable dismay and shock in the House. We were given to understand that when the Minister brought forward an amendment it would be about the basic principle of the pro-life amendment. The amendment put forward by the Minister, without getting into any new technical detail, is not a pro-life amendment. I must be permitted to make this fundamental point before we discuss the minutiae of the amendment. It is because of this difference that so much of the confusion and debate has arisen. Apart from the technical considerations it may be that on examination the Minister's amendment is deficient in that it does not comply with the basic principle put forward. However, there is a wider problem because the basic issue is the integrity of political parties, of the system and the credibility of the Government and the House. We have gone through the various processes, given various undertakings and passed the Second Stage when we understood  the basic principle, but on Committee Stage we are presented with something which is entirely different and does not carry the basic pro-life principle.
The original wording, the pro-life amendment, is:
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.
That wording has been contested on the grounds that it represents an interference on the part of the State. All societies have their systems of values and they are reflected in constitutional framework. That is relevant in regard to what the Minister has said about the wording of the Bill. He has put fundamental questions about whether we should have a Constitution and what we should have in such a Constitution. I contend that every society has its system of values and in a democratic society they are reflected in a constitutional framework and in the laws. It may be difficult to define the boundary lines between the religious-moral issues and issues which are both secular and moral. That is one of the aspects of these amendments which has received considerable attention publicly. Even if those issues overlap, the State is not absolved from regulating the social order or from protecting fundamental rights. The Minister has put one of those questions in regard to the amendment, what is the position of the State in relation to protecting fundamental rights. Irrespective of any person's private religious views it cannot be denied that the killing of the unborn is an issue which fundamentally affects the secular and social order of the State. That is something which is fundamental to the order of our State and which we believe should be properly covered in the Constitution.
I should like to refer to a document which was issued recently in Germany, Comparative Constitutional Law by Professor Walter Murphy, published by Princeton University entitled, Human Dignity and Public Health, Morals, and  Safety. That publication deals with the rights of the unborn and the duty of the State. It deals with an Abortion Reform Law Case in the West German Constitutional Court and states:
The Basic Law protects as an independent value the life which is developing in the mother's body.
The State's duty of protection is far-reaching. Of course, direct State interference in a developing life is outlawed; even further, the State must protect and promote this life, above all, defend it from unlawful interference by other persons ... human life is, as needs little proof, among the highest values in the Basic Law's order. It is the vital basis of human dignity and the precondition of all other basic rights.
But because the foetus is an autonomous human being, under protection of the Constitution, termination of pregnancy has a social dimension which opens it to public regulation and demands regulation.
Of course, the Basic Law also acknowledges and protects a woman's right to free development of her personality, which includes a general liberty of action and thereby also freedom to decide against parenthood ... But this right is not guaranteed without limitation. The rights of others, the constitutional order and the moral code all restrict it. The rights of a woman can never allow interference in the protected legal sphere of others without legitimizing reason, or permit destruction of life itself, especially if there exists by nature a special responsibility for this life. A compromise which guarantees both protection of the foetus as well as freedom of abortion to the pregnant woman is impossible because termination of pregnancy always means destruction of unborn life.
The State must, in principle, act in accordance with the mother's duty to carry out the pregnancy; in principle it must outlaw termination of pregnancy. This disapproval must be clearly expressed in the legal order. The false  impression must be avoided that termination of pregnancy is something like a visit to a doctor to cure an illness, or even a legal alternative to birth control. Neither can the State dismiss its responsibility by acknowledging “a law-free State” and, refraining from upholding values, leave them to autonomous individual decisions.
It goes on to state:
Certainly, the legislator has the primary constitutional duty to protect developing life. Nevertheless, the Federal constitutional Court also has a constitutionally imposed responsibility to determine whether the legislator has fulfilled this duty. The Court, of course, must carefully allow latitude. ... The Court must not put itself in the legislator's place. Nevertheless, the Court has a duty to decide whether the legislator has done what is necessary, within the realm of the possible, to protect endangered values.
This is basically what is achieved by the original Fianna Fáil pro-life amendment and the words “as far as practicable” are included. The Minister asked for some relevant references and this is one which he might wish to study further.
Given that all sections of the community are opposed to indiscriminate abortion, it is not surprising that everybody supports this basic amendment. At least, they supported it before the election but now we have a difference of opinion.
I now go on to the wording used in the Fianna Fáil amendment. It is interesting to consider the point at which it is to be introduced into the Constitution. The text of the Fianna Fáil amendment contained in the Bill reintroduced by the Government is as follows:
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.
Similar words are used elsewhere in the Constitution. Article 40.3.1º states:
 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
What is so wrong with this language when it is applied to the life of the unborn? Article 40.3.2º states:
The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.
The amendment contained in the Bill would become Article 40.3.3º and would state as follows:
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.
Article 40.4.1º states:
No citizen shall be deprived of his personal liberty save in accordance with law.
It is necessary to see the amendment in the context in which it will appear in the Constitution. We can see that the words used are similar to those already used in the Constitution.
It is important to note that the Constitution already contains the same guarantees and protection for many fundamental and personal rights of the citizen, including the right to life. This form of guarantee has existed in the Constitution for over 40 years. Although expressed in general terms it has never been seriously challenged as being uncertain, yet this allegation is made about the proposed amendment. The Constitution has been successfully invoked by citizens on numerous occasions to defend their fundamental and personal rights from attack by the State and it has been found by the courts that there is constitutional protection for many personal rights such as the right to bodily integrity, the right to work, the right to marital privacy and the  right to freedom from inhuman treatment. If this constitutional protection can be invoked so successfully and in such a practical way to defend the rights of citizens, then it is difficult to understand why some people object when it is sought to extend the same protection and dignity to the life of the unborn child. The extension of constitutional protection of the right to life of the unborn reflects the place we give in our society to that right while at the same time recognising the right to life of the mother.
It is well established in the courts that none of the personal rights of the citizen is absolute or unlimited. The Fianna Fáil proposal does not create absolute or unlimited guarantees for the life of the unborn. Such rights are general and fundamental but they are not absolute rights. The proposed amendment specifically acknowledges the equal right to life of the mother, and the laws of the State may therefore provide for the exercise of that right when it is threatened. There is specific provision for this. In the present circumstances the right to life of the mother is clear and it is certain that it must be protected. The Constitution supports the concept that a mother in a life-threatening position must be given the medical treatment required. A mother will continue to have a constitutional right to life and if her life is threatened by illness she is constitutionally entitled to appropriate medical treatment, even if such treatment would result in the termination of her pregnancy. This is also the position in statute law and the amendment would not alter existing legislation or the medical practice which is in accord with it.
The Taoiseach recently raised the scare that medical practitioners would not be able to give the treatment necessary in life-threatening situations if this amendment were made. We have available to us the best legal advice and it has been consistent over a long period. That is why I made reference to the length of time over which this issue has been before us. It is quite clear that rights at present guaranteed in the Constitution would continue to apply following the amendment to the Constitution. Mothers need  have no fear that there would by any change in the position because their fundamental rights are already included in the Constitution. Those rights would still obtain. The advice we have had has been consistent despite renewed referrals on our part from time to time.
It is also the advice given by many people outside the House who are interested in this. We have the Pro-Life Amendment Campaign, the lawyers associated with it and the statement by the university professors of obstetrics and gynaecology. Five eminent professors on 15 April said:
We have read with astonishment the statement by the Taoiseach, Dr. FitzGerald, to the effect that the original wording for the Constitutional amendment would probably “condemn to death” women whose lives are now saved by operations which have been performed within the law for more than a century in Ireland and in the United Kingdom.
They also stated:
Dr. FitzGerald has also cast doubt on the legality of existing well-established medical practice.
An Ceann Comhairle: : What is the reference?
Dr. Woods: : I gave the reference. It is the statement by university professors of obstetrics and gynaecology of 15 April. It has been fairly widely distributed. I believe all Deputies have received a copy. The statement continued:
Doctors do not act on crude assumptions about the legality of their actions. Dr. FitzGerald's assertions will be a source of much unnecessary alarm. We have found the original wording proposed for the amendment to be entirely satisfactory. We believe that this wording would present us with no difficulties in the proper discharge of our professional responsibilities.
This is signed by John Bonner, Professor of Obstetrics and Gynaecology, Eamon de Valera, Professor of Obstetrics and  Gynaecology, University College, Dublin, David Jenkins, Professor of Obstetrics and Gynaecology, University College, Cork, Kieran O'Driscoll, Professor of Obstetrics and Gynaecology, University College, Dublin and Eamon O'Dwyer, Professor of Obstetrics and Gynaecology, University College, Galway. What I have said is really the basic legal interpretation of the constitutional right as we are advised and which is quite clear in very practical terms and has been the practice here for many years past. Not only can we rely on our own practical judgment, on the volume of legal and medical advice which we have had available to us in this situation, but we also have a flood of distinguished and imminent lawyers as well as gynaecologists and obstetricians coming out quite horrified at the suggestion which the Taoiseach made and I am sure quite horrified that the Minister should come back and reiterate those sentiments again today on Committee Stage.
I hope it is quite clear that the mother's right will still be as it is at present, that nothing in the amendment in the Bill will alter that position, and that her right at present derives from her fundamental right to receive the treatment which she requires in a life threatening situation. In addition to all this both Attorneys General who served in the last Fianna Fail administration concluded that our proposal is adequate and effective to protect the life of the unborn and at the same time the right to life of the mother. The Fianna Fail wording leaves totally intact the right to life of the mother.
As far as we are concerned, the question is quite clear and we are quite happy with that aspect of it. As far as the pro-life movement are concerned — a movement of very responsible people who have taken a responsible interest at a time when they saw there could be a creeping development of a movement towards abortion in the country — they are also quite satisfied with the wording we have in this respect as well as in other respects.
Various other questions have been raised about the right to life of the unborn. It is interesting that virtually all  groups wanted a positive formulation of an amendment. The pro-life groups wanted specifically to acknowledge the right to life of the unborn. The Protestant Churches were particularly anxious, as we found when we were preparing our wording, that negative prohibitions should not be written into the Constitution. The Minister at the moment is proposing negative prohibitions. What he is proposing has limitations in its own way. The Standing Committee of the Church of Ireland in a Resolution of 21 June 1982 stated:
We cannot emphasise too strongly the right to life and this includes the right to life of the yet unborn.
If we go on to the question with due regard to “the equal right to life of the mother” the reference to that equal right to life is the right to life of the mother, the same as the right to life of all citizens is an equal right. It was to quell any fears expressed in certain quarters that the right to life of the unborn might be given precedence over the right to life of the mother that that was included in the amendment. The Church of Ireland in a statement of 16 November 1982 said:
In particular, we are relieved that the proposed wording of the amendment acknowledges the right to the the unborn with due regard to the equal right to life of the mother.
The Taoiseach and the Attorney General have sought to suggest that a phrase put in specifically to spell out the protection enjoyed by the mother could remove that protection and somehow condemn her to death by disallowing certain long established medical practices. This, as I have tried to point out, is not the case.
We have seen that the unanimous opinion of the senior gynaecologists supports us in that respect. It has also been pointed out that the wording in no way obliges the Supreme Court to take a perverse interpretation of the wording. The qualification as far as practicable is important in this respect. This is why the wording, as far as practicable, has been included.  It now appears that the Leader of Fine Gael, the Taoiseach, is in open conflict with the Catholic Church, certainly with some members of it, in respect of the claim he has been making. In The Cork Examiner of 26 April 1983 the Bishop of Kerry said:
The mere suggestion conjures up an image of the law which it is impossible to accept. What is being suggested is that, once an amendment of the above type had been passed, the law would be bound to invade the doctor's surgery and restrain him from carrying out life-saving operations which have been standard medical practice all over the world for more than a century. One cannot credit that the law has no access to sound principles which would relieve it of the obligation to do anything of the kind.
Dr. Ryan, the Archbishop of Dublin, has likewise described the argument by the Taoiseach as a calumny. The position of the Protestant Churches in relation to our wording has been called into question as well.
Mr. Noonan: (Limerick East): What is the reference in relation to the Archbishop of Dublin? The Deputy did not give any reference. The Deputy said that he referred to what the Taoiseach said as calumny. Could we have the reference?
Dr. Woods: : I withdraw it and I will supply it privately.
Mr. Keating: : He did not accuse the Taoiseach of it.
Dr. Woods: : The position of the Protestant Churches in relation to the wording has been called into question. Archbishop McAdoo in The Irish Times on 4 November 1982 said: “The proposal seems just and adequate.” Archbishop Armstrong, the Archbishop of Armagh in an RTE interview on 3 April 1983, commenting on the original draft said:
We accepted it in the beginning and we were very pleased. As we said in the statement, in both cases the  Government approached the Church of Ireland to ask for their opinions in the matter and they gave their opinions. It is only an attempt and does not go the whole way. It was accepted by us at the time as an attempt to deal with the difficult moral problems. I do not change my opinion from the time it was submitted to us by the previous Government.
In their statement of 16 November 1982 the standing committee of the Church of Ireland while repeating certain previously expressed reservations said:
Having now studied the text of the proposed Eight Amendment to the Constitution the Standing Committee values the following observations:
(1) We recognise that an attempt has been made to take account of the complexity of the subject and the views expressed by our own and other churches, and
(2) We are relieved that the proposed wording of the amendment acknowledges the right to life of the unborn with due regard to the equal right to life of the mother.
The amendment proposed by Fine Gael would not protect the constitutional right to life of the mother against attack by any future legislation which sought to prohibit abortion in all circumstances even when the life of the mother was at risk. This is a defect which could be important in the future. Such legislation could not be declared unconstitutional on the grounds that it ignored a mother's right to life because the Fine Gael wording provides that nothing in the Constitution may be invoked to invalidate any law which probibits abortion.
Some people have claimed that the proposal to amend the Constitution is sectarian. The Minister has made it quite clear that he does not regard it as sectarian. We shall see as the day progresses if that is still his view. As far as we are concerned, it is not sectarian. Virtually all sections of the community and all churches accept the Offences Against the Person Act 1861 which is understood to  render the procurement of abortion unlawful except where the life of the mother is at risk.
The proposed Fianna Fail amendment will not alter the present statute law or make it more restrictive. It will simply ensure that abortion on demand cannot be introduced without consultation with the people through a referendum. The Church of Ireland has not described the proposal as sectarian. As far as we are concerned, in providing these guarantees which are not absolute, the proposal extends to the life of the unborn in a very positive way the same protection which exists in the Constitution for other fundamental rights. There is nothing inherent in the right to life of the unborn and the value which society places on it which makes it less worthy as an object of constitutional protection than many of the other rights recognised in our democrary.
The Coalition proposal does not acknowledge the right to life of the unborn let alone provide for its protection. Their policy is to reserve for the Oireachtas the right to leglislate for abortion in the future. As the Minister said at the outset, it is reasonable to criticise this amendment for what it does not contain. He looked for support on some technical improvements he has made. It is true that the amendment does not go far enough. It does not provide protection for the unborn child and it is on this basis that we feel that it is deficient. One of the reasons we have rights and freedoms written into the Constitution is to protect them from attack by the State. The courts are the independent upholders of the Constitution and can strike down any laws which make such an attack. A former President and Chief Justice, Cearbhall Ó Dálaigh, once said when referring to the guarantees of fundamental rights in the Constitution that such guarantees are not political shibboleths but provide a positive protection for the citizen.
The amendment before the House fails to give any positive protection against abortion being introduced by law in the future without any reference to the people. It does not acknowledge the right to life of the unborn nor does it seek to  protect that life in the future. We may ask what value it expresses in our Constitution other than bringing a negative prohibition into it. What right does it seek to protect in the Constitution? It is a negation of a pro-life amendment.
The amendment before us seeks to copperfasten the right of the Oireachtas to introduce abortion without consulting the people. It will also curtail the functions of one of the institutions of the State, that is the courts, and prevent them from passing judgment on whether the Oireachtas has acted in accordance with the wishes of the people. It sets a dangerous precedent by undermining one of the institutions of State and fails to recognise that we are a constitutional democracy and not merely a parliamentary one. Those in the pro-life movement do not want to restrain the Supreme Court in their activities but seek to have a positive statement in our Constitution of the values we hold so important so that it will be there as a guide to the courts. The Minister's amendment placing a stricture on the courts would be most unusual in relation to the Constitution. It has been suggested by those in the anti-amendment campaign that the Constitution already contains a protection of the right to life of the unborn and that, therefore, there is no need for the amendment.
Mr. B. Desmond: : Does the Deputy intend to dominate the whole of Committee Stage?
Dr. Woods: : We are dealing with the principle of a Bill which was put before the House. The Minister departed from that principle. The Minister is anxious to depart further from it——
Mr. B. Desmond: : The Deputy might allow other members of his party to speak.
Dr. Woods: : We are committed to this Bill and will insist on the right to make clear the reasons why we are so committed. There is an obligation on me to cover the wording we have put forward and the  deficiencies we see in the wording put forward by the Coalition.
An Ceann Comhairle: : There is no time limit on speeches as long as Deputies remain in order. The Chair would draw the attention of the House to the fact that this is a confined debate which will terminate at 6.30 p.m. with an hour's sos and an hour for Question Time. No doubt the Deputies will bear that in mind.
Mr. Shatter: : On a point of order, could I, through you, suggest in order to have a practical and sensible debate on this issue that Deputy Woods directs his mind to the words of two different amendments rather than——
An Ceann Comhairle: : That is not a point of order.
Mr. Noonan: (Limerick East): Deputy Woods has asserted on a number of occasions that the amendment in my name departs from the principle of the Bill. To make that assertion and to repeat it is an implied criticism of you, a Cheann Comhairle, because it would not be in order to accept an amendment which departs from the principle of the Bill and I do not think he should imply criticism of the Chair.
An Ceann Comhairle: : That is not entirely correct. The amendment could restrict somewhat the extent of the Bill and still be in order, so he is not strictly out of order.
Mr. O'Kennedy: : All our citicisms will be levelled at the Minister, his legal advisers and the fact that they do not seem to have considered the fundamental issues.
An Ceann Comhairle: : Deputies are consuming their own time.
Dr. Woods: : In relation to the Fine Gael wording as proposed here, I have tried to show how this wording is substantially at variance with the principle which was put forward by the proposers of the Bill in the first instance. They will recognise  that, and I appreciate the Minister's sensitivity about that aspect. I believe it is not going to meet the promises and commitments which were given in the first instance. The words which have been put forward by the Government in their amendment are extremely limited and do not represent a pro-life commitment. It has been made quite clear that they could be technically deficient, and in that respect the Minister has made an amendment at a very late stage. However, even that does not merit a great deal of consideration in the House because of the very limited nature of the amendment which the Minister is putting forward. We have been treated to a variation of words and proposals and we have had the Minister's advice and suggestions. He appears to be at variance with his own colleagues and Attorney General in relation to the words which have been chosen. We will be going into further details later regarding the legal, medical and other aspects.
From the beginning we have been anxious to have a pro-life amendment which would bring into our Constitution the guarantees to the unborn which we gave an undertaking to do and which we are prepared to continue. We are not anxious to get into argument over minor points. The Minister has asked me to answer some questions in relation to our Bill. He referred to the word “unborn” being ambiguous. He must be one of the few people in the country who makes that claim. One could say “the right to life of the unborn life” if the Minister felt it was necessary but most people would say that that is not necessary. I could refer to the Minister's advices which either he or someone else leaked from his Department——
Mr. Noonan: (Limerick East): On a point of order——
An Ceann Comhairle: : The Deputy should withdraw the allegation that the Minister leaked something from his Department because that is a criminal offence.
Dr. Woods: : I did not say the Minister  leaked, I said it leaked or was leaked but I withdraw the remark. Would “which came out” be satisfactory? I have it here, so it did come out.
An Ceann Comhairle: : I take the Deputy as having withdrawn the allegation without qualification.
Dr. Woods: : There is nothing ambiguous about the word “unborn”. Even the Minister's own advice seems to have been to that effect. The most likely interpretation which he gave also and which the Attorney General gave in his advices — I have a copy of these also, although I will not suggest how they came out in case I would be in trouble with the Chair. Even the Attorney General says that the most likely interpretation is the one which we have put on it and which any sensible, reasonable juror will put on it. Therefore, the Minister should stop confusing people by asking someone to explain it to him. I am sure it has been explained to him and there is not much doubt about it now. If the Minister takes the Irish version, “na mbeo gan breith” it is much clearer, takes precedence and nobody, including the Minister, seems to find any fault whatever with it. That is included in part I of the Schedule and is generally accepted as being quite clear. There are no reservations about it and it takes precedence over the English version. With regard to the unborn, the Minister has said that that could be made clearer. It could, by putting in an exact point; but this is the reason for having a Constitution, where the general point is quite clear and the detail in relation to it can be discussed in relation to the views of the medical and legal people at the time. The Minister felt that one could put in “from fertilisation” or “from conception”, and of course one could. That is the generalised nature of the rights which are involved here. It is not necessary to do that and it would be unduly restrictive within the Constitution to take that approach. It is quite clear to all concerned the general point at which life begins and, beyond that, it is a matter for the courts and the general practice, which is quite clear at present. If, in future,  there is any further evidence or information emanating from medical, legal or others in relation to it, it can be considered but within the situation where the unborn clearly have the right to life enshrined in the Constitution. The Minister referred to the equal rights of the mother being insufficient. I have said enough about that. We have had two Attorneys General who agreed on that point and most people are in agreement about it at this stage. I do not think there is any need for the Minister to worry about that point.
Therefore, we regard the wording which we have in our amendment as satisfactory. We believe that it will meet the requirements which have been put to us to put a positive pro-life amendment. The amendment of the Minister here is defective in that it does not protect the life of the unborn. It does not provide positive pro-life cover, so to speak, the fundamental right in the Constitution. In that sense, therefore, we believe it should be rejected and we see no difficulty with the original formulation. Before the House also is another amendment which seeks to make the right to life of the unborn subject to the right to life of the mother. Of course, all the rights are equal rights and if we begin to give the unborn a specifically lesser right that would leave the position of the unborn particularly vulnerable. That amendment is included in those put forward by Deputy Mac Giolla and Deputy De Rossa and it is No. 3 on the schedule of amendments which was circulated today, 27 April 1983.
At this stage we will leave it. That is our position and we are quite prepared to discuss and debate the details within that position in the course of the day.
Minister for Health (Mr. B. Desmond): : I follow that rather lucid contribution by at the outset commending my colleague, the Minister for Justice, for his continued endeavours to bring objective public and political judgment——
Mr. O'Kennedy: : We are seeing something  unprecedented this morning. We had one statement from a Minister on Committee Stage and now we are getting another statement on Committee Stage. I have never experienced in this House a formal statement prepared on Committee Stage even by one Minister. Now we are having two. I would have thought that the Minister present now was expressing a degree of impatience at the fact that a moment ago we were not engaged in the usual Committee Stage activities and now we are getting a further formal statement.
Mr. B. Desmond: : It is for the benefit of the House.
Mr. O'Kennedy: : If that is the case I beg leave to withdraw and read it outside because this is no longer Committee Stage activity.
An Leas-Cheann Comhairle: : I am asking the Minister to continue his contribution.
Mr. O'Kennedy: : Then we do not have to wait for a long speech. I will read it outside the House.
Mr. B. Desmond: : At the outset let me commend my colleague, the Minister for Justice, for his continued endeavours to bring objective public and political judgment to bear on this grave referendum proposal which was not of his making in the first instance. Let me also support and thank the Attorney General for his unambiguous advice to the Government and the people on the complex constitutional implications of the many propositions which have surfaced on this major question. The public debate which has taken place has proved to be divisive to an extent unprecedented in recent times. It has generated confusion and bitterness, which do not provide a stable basis for decisions as important as changing our Constitution.
The only acceptable way of approaching a discussion on the form of words to  be used in a referendum is to clarify that which we seek to achieve. As I understand it, the instigators of this campaign for constitutional change were concerned that legal interpretation could result in the introduction of abortion, against the clear will of the majority of our people. Leaving aside whether such a fear is realistic, that at least is a particular aim. However, there is an incredible reluctance on the part of those same people to accept the clear implications of their favoured amendment.
The highest law officers of our country have confirmed for the Government what seems quite likely to the layman: that is that the original form of words proposed by Fianna Fáil would result in most serious uncertainty. The only means of resolving that uncertainty, arising from the clash of two proposed equal rights of the mother and child, is to test it in the courts. As a result, the final decision on whether and in what circumstances the procedures amounting to abortion would be permitted would rest with the Judiciary. Yet this is precisely the result which the campaigners sought originally to avoid. Equally seriously, legal interpretation of this form of cords would resolve the conflict of rights in such a way as to prohibit medical treatment which is currently available for life-threatening conditions. I point out to the House that every year between 300 and 500 ectopic pregnancies occur in Ireland. Surgical intervention which can result in the death of the foetus is necessary in such cases, as it is for treatment of cancer of the womb. More generally, to give two examples only, I wish to draw to the attention of the House the recent statement by the Dean of the School of Medicine in Trinity College that it is a universal feature of medical care that the mother is accorded priority where necessary treatment may harm the foetus. He instanced, for example, the use of antibiotics or treatment for acute leukaemia which might have an adverse effect on the foetus. The risk to the foetus is accepted and treatment is instituted. Similarly, the Master of the Rotunda Hospital has stated that if doctors had to give equal rights to the mother and infant, caesarean sections to save the  live of mothers suffering from high blood pressure and kidney disease could be fatally delayed. I find it very difficult to understand how the very serious implications of this form of words — and I have given only a mere two implications — can be shrugged off by the supporters of the original wording. Such indifference to the threat to the life of so many women is totally incompatible with a pro-life stance. The serious possibility of such an interpretation by the courts cannot be wished away. Above all other considerations this proposed constitutional amendment affects the future well-being of every woman now of child-bearing age in our Republic and of women yet to be born in our State. This almost all male and almost all Catholic Dáil seems by majority determined for the most part to impose its moral values and medical criteria on the women of Ireland for decades to come. Shame on those of us who would do so today.
Another important area of uncertainty arising from the original form of words is the position of well-established family planning methods. Of course, this may be an intended result of the amendment in view of the well known hostility of the so called pro-life movement to most forms of contraception. It is of interest to note that since November 1980, successive Ministers of Health, including Deputy Woods, have signed licences permitting the importation into the Republic of over 59 million condoms. One must add to this total the many millions imported without licence. What of the 55,000 women on the pill in this country and the two to three thousand women who use IUDs, the importation of which is illegal? Is it now proposed as a next step in this ultra moral constitutional crusade to prosecute women who use IUDs?
We have before us a choice between the Fianna Fail wording and the amendment proposed by the Minister. The wording of the Fianna Fail amendment was precipitously formulated as is obvious when one looks at the files in my Department. Those files also show that Deputy Woods did not make an important contribution to the agreed wording, and in view of the lucidity of his contribution  this morning that could be excused.
As Minister for Health I must choose between these two amendments. In that context, and only in that context, the Minister's amendment is preferable because one must accept that it is the intention of the majority of this House, much as it is against my wish, that a referendum be held. I must advise the House, if I have any responsibility as Minister for Health, which alternative is preferable, bad as they both are. I am opposed in principle to the holding of this referendum because I do not believe, and I have spent many months considering this question, that there is a need for or a capacity of true definition of prohibition of abortion being inserted into our Constitution. As one opposed to abortion, I hold the view that the provisions of the 1861 Act adequately meet our needs relating to abortion. If I have to choose between the two alternatives now before us, I accept that the Minister's amendment accomplishes only to a degree the objective originally sought by the so-called pro-life campaign and mitigates the uncertainties and the inducement to litigate which are inherent, and disastrous, in the original wording.
Despite this and despite the evidence that the original wording is extraordinarily defective and dangerous to women, the pro-life movement have rejected it and have shifted their ground to what I call the hysterical accusation that the Oireachtas, the representatives elected by the people, would fly in the face of the wishes of the people they represent by introducing legislation to permit abortion. That is the nub of the argument. That is an insult to the Members of the Dáil and it is a diminishing of the traditions of our democracy that such a suggestion be made. It is even more reprehensible that some Members of this House should actively seek to propagate that fear. I deplore the appalling public attacks made by Deputy Oliver J. Flanagan on the Taoiseach. His gross inference in his RTE interview that the Taoiseach was propagating a policy of abortion, of Herodian slaughter of the  innocents, brings deep shame on Dáil Eireann.
It is also difficult to avoid the conclusion which can be drawn from Deputy Wood's contribution that the deep feeling of our people on this important issue is being used as a weapon in a party political conflict.
Dr. Woods: : Shame.
Mr. B. Desmond: : Unfortunately, there are Members of this House who are not averse to that kind of cynical posturing. So long as my views and the views of the people are so firmly committed to the right to life of the unborn — and more particularly of those who are born — there is no possibility that the Oireachtas would introduce legislation to permit abortion. If we pass this amendment into our Constitution we will deny our people the opportunity which may exist in decades to come for legislation to improve and clarify the present legislation outlawing abortion.
This House should be as free as possible to frame such legislation in a way that precisely matches the consensus about the circumstances in which medical treatment may have to be given which, as an inevitable consequence as happens at present, may result in the loss of the foetus. The best defence of the right to life of the unborn, as of all other fundamental human rights, is the strength and vitality of our democratic institutions. What we are doing today is diminishing that strength, vitality and public consensus. Constitutional and legal provisions may not alway be enough. The evidence of other countries is that public opinion on this issue is very often stronger than the law or the Constitution. Where public opinion has moved to favour liberalisation of abortion legal sanctions have proved ineffective. It is of critical importance that while our people maintain their opposition to abortion there is no possibility that this House would contemplate defying the wish of the people and we should retain that right in this House. If a referendum is to be held, regrettably, I would favour the Minister's new wording, but only as the lesser of two evils.  This is the whole purpose of reviewing a Bill on Committee Stage when one must choose between the actual alternatives now before the House.
I continue to maintain my opposition to the holding of any referendum on this issue. It has proved to be gravely divisive, particularly as it has provoked conflict between the Catholic Church and other denominations on this fundamental issue. It is a sad day for the country and for the moral values of our people that we should witness such a grave impasse in Church-State and inter-denominational relations. Ecumenical progress, so urgently needed on this island, has been seriously damaged by the insistence of a small number of Catholics of extreme views in relation to abortion, contraception, life, and a small group of their supporters within their own hierarchy that their view and theirs alone should prevail over Deputies' in this House and in our Constitution. All of us in this House must deeply regret this development in Irish politics.
Though I favour the ministerial amendment — it is basically an amendment derived from Fine Gael deliberations — the Labour Party have a free vote on this issue, and I am speaking in that context. Though I will vote in favour of the ministerial amendment, I will continue on Report and Final Stages, and at the end of the Committee Stage, if we have time to have a vote then, to oppose the holding of a referendum, irrespective of the form of words, because it debases the role of our Constitution as a focus for unity. To provoke deep division, as this debate has done, and to achieve nothing tangible as a result, is to debase our Constitution. The spirit in which constitutional change should take place was best described by the sponsor of our Constitution, Éamon de Valera, when he addressed this House in 1937. He said — in the Official Report, 11 May 1937, column 75:
We can, I think, if we only had the will to do it, approach this document in the spirit of its preamble — as it is intended to provide a basis for internal good order, social order, here; that it is intended to secure the dignity and  freedom of the individual and that it is intended, finally, to have peace here, to bring about the unity of our country as a whole, and to have accord with other peoples.
Primarily, then, the Constitution should be a focus for unity. Again, Eamon de Valera's approach is persuasive — column 66:
My anxiety is that we should agree on this fundamental law to the greatest extent possible. That is why it has been introduced in the Dáil for full discussion and for full amendment before it is submitted to the people by way of plebiscite.
On this important issue the level of agreement appropriate to our Constitution has not been achieved, or even been sought in any way relevant to our aspirations for unity on this island. Furthermore, on a matter of this kind broad agreement may not ever be possible. Because of the differing views held within the community, not least on denominational lines, it is preferable to retain the flexibility to frame legislation which most nearly approximates to the consensus prevailing at any particular time. Indeed, Eamonn de Valera understood the need for such flexibility. When introducing discussion on his draft Constitution in this House he said of the fundamental human rights provisions — column 62:
You cannot state those things absolutely. All you can do is to give the fundamental principles; to state them clearly and correctly and leave it to the sense of justice and good will of the community, to work in accordance with the spirit of the declarations.
Therefore, I am in reasonable company in opposing the proposed referendum. My opposition to it is also due to the fact that it will have no effect on the Irish women and girls, more than 80 each week, who travel to Britain for abortions. Theirs is the real problem and the real tragedy. The majority of them are unmarried and in many cases they are driven to this terrible step by the pressure they experience on becoming pregnant. That pressure comes from their families,  relatives, neighbours and work-mates, and quite a number of men directly involved. How many of those who advocate an amendment on this issue, on grounds of public morality, would apply the same pressure if a single girl in their own family were to become pregnant? I fear that that would be an all too common response.
Just as hypocrisy has driven many Irish girls to the abortion clinics of Britain and elsewhere, I fear that collective hypocrisy is driving us in this House to permit a referendum which will give some the satisfaction of having empty phrases enshrined in our Constitution while thousands continue to travel to Britain and elsewhere for abortions. The reality of the problem of abortion here is such that I cannot support such empty gestures. I deprecate this whole campaign which has provoked such division in the community, threatened the proper role of our Constitution and has obscured the real problem of abortion which cannot be tackled by legal formulae.
From sources available to me I am satisfied that there is a good deal of information within the Republic and in the United Kingdom regarding the women from this country having abortions in the United Kingdom.
I am asking the Medico-Social Research Board to collate and analyse such information as can be collected or is already available and to report to me on their findings as early as possible.
I have, indeed, already been in contact with the board on this important matter which is of such vital public interest and I hope that their report will be with me by the autumn. I would expect that the board's findings will contain important information about the women in question including such matters as geographical and age distributions, occupational, social and marital status, any history of previous abortions and other relevant data. I submit that the former Minister would have been better engaged in that kind of approach than in trying to expound his philosophy here with such consequent confusion.
I can assure Dáil Éireann that, as soon  as this vital information becomes available to me, I shall lose no time in informing the House of the findings and of the action I propose to take arising from them. Meanwhile, it is my intention to allocate from the moneys available in the budget for voluntary social service bodies some resources to enable concerned organisations to provide advice and assistance to women who might otherwise contemplate having abortions.
Accordingly, I intend to vote in favour of the amendment put forward by the Minister in the context of a free vote within the Labour Party. I want to commend my colleague in the Labour Party, Deputy Cluskey. When this matter was first broached to him he was the leader of the Labour Party. I attended a meeting with the sponsors of this campaign where he showed extraordinary perception, courage and directness and did not fall into the trap which——
Mrs. O'Rourke: :——Garret fell into.
Mr. B. Desmond: :——leaders of other parties fell into at that time. For that we must give him credit. I also give credit to the leader of my party, Deputy Spring, who, despite the pressures of the general election campaign did not succumb to these pressures. As a Member of this House I value my democratic right as an elected representative of the Irish people. Nobody, be it a pressure group, be it church, be it party, will influence my conscience on such a grave matter. Having served in this House since 1969, I am profoundly ashamed of the extent to which Deputies, who privately confess that they are appalled at the implications of the original wording put forward with so little thought by Deputy Woods, and so little analysis by the Government of the day, now succumb to those pressures and create a constitutional impasse. When history comes to be written the files of the Departments will prove my point. As Minister for Health, I am concerned about the future well-being of the women of Ireland——
Mr. O'Kennedy: : The people of Ireland.
Mr. B. Desmond: : I am concerned about the well-being of those who will be born in the future. In conscience I could not recommend the original wording. That wording is regrettable and dangerous. I will vote for the Minister's amendment and, on Report Stage, I will vote against the holding of a referendum. If a referendum is to be held, as this House seems to be determined, let us at least hold it with the least damage to our country. Let us try to maintain on this island, North and South, between different denominations a sense of national purpose and a sense of respect for one another's views on grave issues such as abortion and moral values. If I were a member of a Northern Ireland denomination other than the denomination whose members are pushing this through, I would not have anything to do with Dáil Éireann for many a decade to come. That is another major tragedy.
In Dáil Éireann we must try to ensure that we do not bend to extreme pressures and extreme views on aspects of medical practice. I can find no recommendation or support in any Government Department for the form of words suggested by the Fianna Fáil Party. As a layman I have tried desperately in the past few months to understand the medical issues involved. I am sickened and appalled and I find it obscene that a wording of this nature should be proposed particularly by people who purport to have available to them experience in gynaecology, in obstetrics and in constitutional law. As a layman with no qualifications in those fields I implore Deputies not to go ahead with that wording. I urge those who are determined to ram it through to have second thoughts about it and draw back from putting the future legal interpretation of the right of women and the right of the foetus in danger in a constitutional context.
Mr. Mac Giolla: : This is a black day for democracy and will be seen as such in 30 or 40 years' time. I hope, a Cheann Comhairle, that you will not rule me out of order if I touch on things about which I have not had an opportunity to speak  as yet. I would remind you that I was not allowed to speak on Second Stage because of a guillotine. Therefore, there are some comments I should like to make all of which will be relevant, I am sure you will agree, to the referdum which it is proposed to hold.
I want to mention the constant references to pro-life in this debate particularly by Deputy Woods. He referred to the pro-life amendment, pro-life people, and said: “We are pro-life”. I want to declare to this House that I am pro-life and I have been pro-life in many campaigns over a long number of years. I was pro-life in campaigns against the Vietnam War, against other wars, against NATO, against nuclear missiles, against terrorism and against legal executions.
I wonder what record of pro-life the so-called pro-life people have, the small fanatical group who began what they called the pro-life campaign. In many cases they are the very people who support legal executions, nuclear weapons, joining NATO, whipping, lashing and hanging. They are the type of people who have moved into politics in the United States in the past five or six years also. They are known as the fundamentalist groups, the Bible thumping fundamentalists who are pushing the United States to the brink of war almost. They dominated the election of Ronald Reagan and they succeeded in having some of the most liberal and progressive representatives in America defeated in the last election. They are aiming to defeat others, including Senator Edward Kennedy, in the next Government. They have become quite a force in American politics.
This is the type of group who have been started here, the type of group who are fundamentally fascist in nature and who are attempting to dominate politics in Ireland as this group have dominated politics in America. The final outcome of such domination of political life would be theocracy of the type in Iran under the Ayatollah Khomeini. We can see from what is happining in Iran how pro-life are the religious Government in that country, the daily executions, the cutting off of hands and other dreadful actions in the name of God and religion. This is what  we would be faced with, the type of fanatical theocracy that will be followed by the small group of people who began this campaign of political blackmail on political parties. The Roman Catholic hierarchy were not at any time campaigning for such an amendment but they have been forced into the position of having to back this Fianna Fáil wording which came from God knows where.
I want to nail the pro-life suggestion that those who oppose the amendment are anti-life and that those who support it are pro-life. The case is almost the reverse. Many babies who were unborn in 1945 when the atom bombs were dropped on Hiroshima and Nagasaki are dying today and have been dying for many years. Therefore, the actions of governments in relation to nuclear weapons and all weapons of war should be as vital a concern to the so-called pro-life people and members on the Fianna Fáil benches who have followed this line. They have attempted to be more religious than the Pope himself, more on the side of the angels than the hierarchy and now sit smugly in this House. One might call them “Charlie's angels” but if we think back to a few months ago we might remember them as the angels with dirty faces. This is the type of smug hyprocrisy which has led to this amendment being put before the House and which is leading the whole process of parliamentary democracy into the sewers.
It is no great credit on the Taoiseach either who has shown such political ineptness and lack of political integrity. On his own admission he went into this at the last election knowing it was wrong but for political purposes he went along with it. He says now he knew at that time he should never have done it but he did it to win an election as though that made it all right. This is not political integrity or courage of the type needed here. People should stand up and say what they believe in, and on this question it is even more vital that people speak out with courage and guts whatever their political future. It is important for the unborn and for the future of the country that we have political integrity and that we give some  meaning and credibility to this House. In 1983 we are supposed to be grown up as a nation. We are not even grown up as individuals in the carry-on we have had in the past three months. We are proving we have not advanced very much since 1951.
Fianna Fáil brought forward the amendment two days before they left office. It came from the great republican party. They used to be the republican party in brackets but they became somewhat brave in recent years and took away the brackets. Now they are the republican party without any brackets. What kind of republicanism is it that would bring forward an amendment like this? Would a republican party in the tradition of Wolfe Tone or Davis do that? Fianna Fáil are supposed to be against sectariansim, for democracy and pluralism, for the type of society Wolfe Tone wanted when he gave such tremendous support to the French Revolution at the end of the 18th century, out of which the seeds of republicanism came to Ireland.
Republicanism is not just a matter of getting the Brits out. Surely after all these years Fianna Fáil realise that republicanism must be shown as something more than calling the Taoiseach a blueshirt or some ridiculous slogan like that at election times? They must realise it must be proved by their actions in endeavouring to unite the people of the country, in endeavouring to developing a society where there is separation of Church and State, the type of society Tone and Davis wanted. Surely they recognise the fundamental difference between the republicanism of Tone and the Catholic nationalism of Daniel O'Connell who in '98 was actually hunting down the rebels. That type of republicanism is not understood by Fianna Fáil and I should like either Deputy Haughey or Deputy Woods to define for the House what they mean by their republicanism. In bringing forward this amendment to the Constitution, they have abandoned all credibility to their claim to be republican. They have no understanding of the concept of republicanism.
We have seen the effect in this House and outside it in the past few months  where confusion and division has been growing. Just imagine how that will be during the course of the campaign throughout the country at the time of a referendum on this amendment. We saw the kind of picket outside this House last Tuesday, when busloads of fanatics came with their posters about the slaughter of the innocents, about Herod and Hitler. This is precisly what will happen during the course of a referendum campaign when high emotional feelings will be built up and when there will be divisions even in families. Meanwhile the world outside just gazes in wonder and laughs at us. They wonder what we are at while the economy is in absolute ruins, when we have the highest unemployment rate in the EEC and growing rapidly, when our finances are in bits and when we are dependent on foreign borrowers. Here we have an amendment to the Constitution which is totally meaningless, of no benefit to anyone, but a grave danger to many women in the future.
This is the type of campaign in which people's rights to express their views will be attacked and an endeavour made to suppress them. I do not blame the Fianna Fáil Party for their smugness. All they need do is sit back complacently and look on as the Taoiseach's party are torn apart and the Labour Party go in three or four different directions. They see it as the only possibility of a breakthrough in the electoral scene and will use the electoral and political possibilities of this issue to their utmost to get back into favour on the political scene.
The Taoiseach has shown that he is the leader of the people in Government. He is the person that the people look to for leadership. He is the person who should have made some decision a few months ago when he saw the situation. We put down an amendment here months ago to have this matter referred to an all-party committee. Surely the Taoiseach could have seen the difficulties being caused to the country, to himself, to his own party and the other Members and at that time could have referred it to an all-party committe where there could have been discussions and, perhaps, all-party agreement.
 So far, in this debate all the speakers in favour of the amendment have confined themselves to condemnation of abortion. They have done so day after day, week after week. If a motion were before this House that it condemns abortion, there would be no problem and the motion would be passed. However, that is not the issue. The issue is a constitutional amendment which is before the House. Surely we should be grown up enough to discuss this in a rational way; how it is going to affect us now and in the future; what the legal, medical and social implications will be. Let us get information, statistics and so on and examine this question. We have come in here with no background information, just hearing people shouting at us as we come in and we adopt these positions.
Our party put down a number of amendments and, true to say, we thought long as to whether we should do so, or just leave the matter as it was. The Workers' Party are totally opposed to any amendment being made to the Constitution on this issue, totally opposed to the Fianna Fáil amendment and also to the Fine Gael amendment. Then why put down amendments ourselves? We put them down as a fall-back — presumably, that is what the Taoiseach did also — to try to avoid the worst elements of the Fianna Fáil amendment and to have a discussion on these so that, at least, the House would be aware of what precisely we are talking about in the Fianna Fáil wording. As a result of the collapse of the Taoiseach's authority in his party, which should result in his resignation, we are coming before this House knowing that the Fianna Fáil amendment will be passed.
We put down these amendment for the purpose of discussing the issues. The first was on the question of the life of the unborn. We put down an amendment referring to the unborn human being, to substitute the concept of a human being for that of anything that is living and to allow account to be taken of developing what constitutes a human being, and not to restrict the courts, in construing the text, to a mere concept of life which, in fact, if one considers the wording, could  include animals, or other sub- or prehuman life. There is no definition whatsoever. Unborn what? In the two months in which we heard speaker after speaker on the Fianna Fáil benches, they never told us this. What unborn is it and what affects it?
What is perhaps the most serious concern of any responsible elected representative here is the enormity of what this amendment proposes to do. Here, in Ireland, in 1983, in Dáil Éireann, we are proposing to define what no other country at no other time in history had the temerity or audacity to do — we are proposing to define precisely when human life begins and what, in essence, is a human being. If this amendment is passed it will have to be interpreted and that interpretation will mean such a definition. We are proposing to do what medical science, the philosophers and even the theologians have been unable to do. The theologians are finding it as difficult as in the days when they were trying to count the number of angels that would fit on the head of a pin. We are making the decision here. Fair dues to us. We are away ahead of the world at least in one thing. Throughout history, according to what medicine and science have been able to tell us, there have been varying definitions taken as the starting point of life. For instance, at one stage the time of quickening, which was in about the sixteenth week of pregnancy, was the view put forward. At one time some theologians held that the moment when life in the womb became truly human differed between male and female — it took longer for the female to become human than for the male. There is, in fact, no consensus among scientists or theological experts as to when human life begins. Although dogmatic stands have been taken on a definition of human life and taken by the Fianna Fáil benches here as the moment of fertilisation, in practice the more common reference point is taken as the point of implantation in the uterus.
In so far as society wishes to express its opposition to abortion in general in an expression of the value of human life, it  is a positive aspiration and certainly one with which no socialist would quarrel. But in so far as this country—specifically this small body of politicians — decides to impose on society a precise definition of the moment of humanity, then we are making ourselves preposterous. There is a view put forward by the advocates of this amendment that human beings exist from the moment of conception. Many people are undoubtedly sincere in this view and have every right to hold it. But there are many other views which are equally unproveable, equally possible, equally valid, that human life begins when the fertilised ovum is implanted in the womb, that human life begins when the brain begins to function many weeks later, or that a human life can be said to exist only from the point of viability. Scientific research may well yield new information which will and must change our views in the future. Meanwhile we are to be burdened with an amendment which will have to be tested in court. The definition passed in court will be ours to live with, whatever the consequences or whatever may be the changes in medical science or anything else.
The irony of this amendment is that it might very well affect adversely the very people who want children, who are prepared to go to great lengths to have their own children. Those infertile couples who seek the most modern medical treatment to help them conceive and bear children may well be victims. The word “unborn” is defined as life from the moment of fertilisation and this could affect the possibility of their having children in the future.
The other amendment which we put down was to discuss the issue of the equal right of the mother with the right of the unborn foetus. When the wording of the amendment was first announced many people were reassured that what was being said was after all an expression of the sentiments of the majority of the Irish people, an acknowledgment that we do, on the whole, regard abortion as abhorrent and feel that the child in the womb is a human and entitled to the same rights as other humans. Moreover, the fact that  the amendment referred specifically to the mother's right to life as equal was seen in the beginning as particularly reassuring because we are not very far removed from the days when the moral dictate was that in the case of a conflict at childbirth between the mother's and the child's life, then the child was to be saved. Many a pregnant woman, and many a man watching his wife in labour was haunted by the fear that this impersonal dictate would be carried out without reference to either of the parents' wishes, as was so often the case.
There is no doubt that while most Irish people are opposed to abortion they also feel very strongly that the life in the womb, in all justice, cannot possibly have a stronger claim on life than the woman concerned, a woman, who, in very many cases, is responsible for the care of other children. Thus this phrase “with due regard to the equal right to the life of the mother” was seen in the beginning as an acknowledgment of the woman's claim on her own life, an enshrinement in some way of what we all truly believe. However, this is not the case. A close scrutiny of the phrase itself and the context in which it is set shows that it means practically nothing in real human terms. In fact it may be interpreted in such a way as seriously to jeopardise present medical practice. For instance, the right to life, as defined in the Constitution, is quite distinct from that concept of health which is implied in the Constitution as “bodily integrity”. This distinction is important for, in terms of the proposed amendment, it seems to mean that the mother's life only, as opposed to her death, shall have equal status with the life of the foetus; it does not mean her life of any particular standard of health or well-being. In other words, the risk to the mother — it seems from this amendment — would literally have to be death for her to have any possible constitutional right to interfere with the survival of the foetus.
As we know, conflicts of this kind, thankfully, are much rarer today than they were once but there are still today diseases affecting women which require forms of treatment in which such conflict  could arise. The most important of these is cancer, frequently treated with radiation or other drugs designed to kill malignant cells. Obviously they may cause damage to other living cells, particularly those of the foetus. One of the major causes of cancer deaths among women is cancer of the uterus. In one out of four cases this cancer affects the body of the uterus. Hormone treatment of this type of cancer is usually followed by surgery. In this country now the surgical removal of the womb of a woman with cancer is tolerated even when the woman is pregnant on the grounds that the aim of the surgery is to remove the cancerous organ and not to terminate the pregnancy. This was stated specifically by Deputy O'Hanlon when he spoke on Second Stage at column 465, volume 340, of the Official Report, and I quote:
Medical ethics are based on the natural law with regard to the equal rights of mother and infant. A doctor would never have to say: “I will save one life and I will let the other go”. The type of cases which have been mentioned by those who are opposed to the amendment are very rare, for example, where a woman has cancer of the womb. Cancer of the womb in a pregnant woman is a very rare condition.
He said that about five times.
Where it does occur, if it is necessary for the womb to be removed, it will be removed. If the woman needs radiotherapy, she will have radiotherapy. The fact that there is a pregnancy in the womb does not mean there is an abortion, because there is no intent on the part of the doctor to merely kill the child in the womb. The doctor's intent is to remove the cancerous womb. The same can be said about ectopic pregnancy, a pregnancy outside the womb.
Deputy O'Hanlon is there repeating a myth which has been propagated for months that termination of pregnancy in the case of cancer of the womb, or in the case of ectopic pregnancy, is not abortion, in other words that you can have termination of pregnancy which is not abortion. That is a nice type of concept  to relieve the conscience. But when it comes down to legal practice as against medical practice, one is in an entirely different field. The point Deputy O'Hanlon is missing is that it is grand now, there is nothing in the Constitution, nothing in the law, to prevent us from having this ethical, medical practice. Therefore, we can save the life of the mother because we can say to ourselves that it is not really abortion. But if that is put into the Constitution, once it is put into the Constitution, it is taken out of the hands of the medical profession and placed in the hands of the legal profession.
It is going to be a lovely day for the legal profession when they get their hands on that. Will they decide on ethical practice, on moral values? Are they even going to make the decisions on the basis of justice? No, they are going to make their decisions on the basis of law. They will make their decisions on the basis of definition — abortion is abortion, termination of a pregnancy is abortion, regardless of the circumstances. Therefore, the law will decide what the medical profession may do and that is precisely what will be the difficulty facing Irish mothers and fathers if this amendment is passed.
Recent developments in the treatment of cancer aim to avoid surgery. Medical scientists believe that within a few years we may have a situation in which a woman could be treated effectively by way of drugs and radiation for cancer of the uterus and still retain her womb. In other words, she could have children afterwards. Obviously, if a woman is pregnant at the time the cancer is diagnosed, the problem presents itself: if the womb can be saved by drugs or radiation the decision is whether to abort the unborn and to give to the woman the opportunity of having children in the future. Would that also be a termination of pregnancy that would not be abortion or would it directly be abortion? I am merely mentioning these matters to draw attention to the issues that were not raised when this amendment was put forward glibly, when it was hoped to make abortion the issue and thereby avoid the  issue of the economy. In order to avoid abortion being the issue in the November election, the only reason put forward by Fine Gael for the amendment was that they were walked into it. The question of the protection of mothers or of the protection of future children has not been considered. The situation facing Irish women and their doctors in the event of this amendment being passed may well be the old fashioned surgery that is acceptable, although it involves termination of pregnancy, but with the same risks to the mother and to the unborn.
Ectopic pregnancies now represent one in 150 of all pregnancies. Yesterday we were told in answer to a parliamentary question that in 1982 there were 500 ectopic pregnancies. There are complicated moral and legal questions to be asked. At present the treatment of ectopic pregnancies, that is pregnancies occurring within the fallopian tubes, in Irish hospitals is by way of surgical removal of the entire tube. Again, the operation is justified on the grounds that the intention is to provide medical treatment for the damaged organ of the woman with the termination of pregnancy being a secondary effect. Nevertheless it is termination of pregnancy. A new procedure under development would involve sucking out the misplaced embryo, leaving the fallopian tube intact and leaving the woman with the possibility of conceiving again. However, the interpretation of “unborn” as life existing from the moment of fertilisation might mean that Irish women would be denied the benefits of this improvement in medical science and would be denied the opportunity of ever again conceiving.
In terms of the rights of women it would appear that this amendment would mean that only in extreme and rare cases in which a woman's death was a certainty due to her pregnancy, could she present a case for having that pregnancy terminated, not in medicine but in law. Even in that rare instance her rights would be only equal with those of the unborn.
I should like to quote from a statement from Archbiship Ryan and which was circulated on Sunday last. The quotation  from the publication, The Archbiship Speaks, is as follows:
In the context of the current debate in Ireland, yet another criticism has to be looked at. It is the suggestion that the Catholic Church is so concerned with the life of the unborn child that the life of the mother somehow becomes secondary.
This is a calumny, sometimes supported by medical testimony of very doubtful accuracy. It is the clear teaching of the Catholic Church that every human being, born or unborn, has exactly the same right to its God-given life. If a situation should arise which threatens the lives both of a mother and her unborn child, it is the obligation of the doctor and of everyone else involved to do everything which medical science makes possible to save both lives.
There can never be a question of “sacrificing” any one life for another.
Is that not an impossible situation for a doctor? This amendment puts the whole matter into the hands of lawyers. In all other cases in which the mother's quality of life or standard of health or risk to life are concerned, it may well be that the right to existence of the tiny embryo would be superior. Is this a just and right principle to enshrine in our Constitution now and for all time regardless of, and even heedless of, medical developments?
We have put down an amendment to substitute the words “subject to” rather than “equal to” in the Fianna Fáil amendment. This change would give added protection to mothers, a protection to which they are entitled. The rights of mothers have not been considered by the framers of this constitutional amendment. Little thought has been given to its effects, first, on the political life of the country, the divisiveness which it will create and, secondly, on medical practice if the amendment is passed. Let not Fianna Fáil be too smug about this because they might get some dirt on their faces. People are not such fools as to walk into this type of thing with their eyes shut and just blindly follow Charlie. They may get quite a suprise because people are gradually  realising that this is not a vote on abortion and that this is a political issue which is being foisted on them. They are getting more and more confused and coming to the conclusion that it would be far better if this issue was never raised at all, far better for the unborn as well as for the born.
After the referendum there may be some surprises when the result is announced. If the referendum is passed the issue then moves into the social field and some of the difficulties in that field were raised by the Minister for Health. It is significant that the Minister for Health said on two or three occasions in the House — it certainly has never been denied — that all the officials in the Department of Health, from the top to the bottom, see the grave difficulties of the amendment and are totally opposed to the Fianna Fail wording because of the problems it will cause.
Dr. Woods: : On a point of order, I do not think it is appropriate for a Member to quote individual civil servants in this instance. If that is the case I will have to bring forward civil servants from the Department of Health and elsewhere in the public service who do not agree with the statement made. I do not think the Deputy's statement is appropriate.
An Leas-Cheann Comhairle: : Deputy Mac Giolla should proceed without any reference to officials.
Mr. Mac Giolla: : I did not refer to any officials; I referred to the Minister for Health who during the Second Stage debate made that point clearly——
An Leas-Cheann Comhairle: : The Deputy made reference to officials from top to bottom.
Mr. Mac Giolla: : I was referring to what the Minister for Health said in the House and nobody stopped him saying that. I am referring to the fact that the Minister said that the officials of the Department of Health were opposed to the Fianna Fáil wording. I do not have a record of the date but he did make such a statement  on Second Stage. I am anxious to make the point that insufficient thought information or study of the implications for the social and political life and medical practice has been given. I hope that during the afternoon some wider issues are discussed by the supporters of the amendment rather than listening to them coming up with the old hat pro-life material which is simply saying that we are all against abortion. That is true, but it is not the issue.
Minister for Trade, Commerce and Tourism (Mr. Cluskey): : I have been a long time in public life and I have never entered a discussion with less enthusiasm or a feeling of greater sadness than I do on this occasion. I believe that what the House is engaged in today, and what would appear to be the inevitable outcome of today's proceedings, will drag Irish society back decades, not because of any great clamour by the Irish people but because of what I can only describe as a combination of political opportunism and moral cowardice on behalf of the majority of politicians in the House. I honestly believe that they will regret this and that Irish society will pay dearly for those motivations that led them to give in to political and moral blackmail by a relatively small number of people. As the Minister for Health said this morning, I met the people who describe themselves as pro-life. I met them on behalf of the Labour Party when I was leader of that party. I was accompanied by the Minister for Health who was then Whip of the Labour Party. That was when they first started this campaign. The fact that they called themselves “pro-life” was an indication to me of the way the campaign was going to develop, because the deliberate implication in that title was that those who were against them were against life, were anti-life. The name they gave themselves was the start of their political moral blackmail which has been so successful but for which we will all pay dearly.
Unlike some Members I have never purported to be a religious person. Some Members have made their political careers out of being professional Catholics,  But I have religious beliefs, and very strong beliefs, with regard to abortion for a number of reasons. I am against abortion. I believe there is sanctity in human life, that it derives from God and that God alone has the right to take it wilfully. That is a basic belief I have always held and still hold. However, we are not talking about abortion or whether we will or will not legalise it. We are talking about a different issue. I will oppose any amendment being enshrined in the Constitution. I am opposed to it in principle and everything that has happened since it was first mooted has confirmed my belief in the wisdom of the decision I made at the outset: that I would not give tham an undertaking, that I would not be subject to or allow the Labour Party which I was leading to be subject to that kind of blackmail.
I recognise, and I did then, that a lot of people are just political band waggoning on this issue. Can any person say on an issue such as this, which has caused many difficulties of conscience to some Members that every Fianna Fáil Deputy believes in this approach? Members of that party have not been allowed to exercise their conscience and one can only conclude that from that side of the House purely political advantage has taken precedence over everything else on an issue such as this. As far as this side of the House is concerned, a number of Members have shown the moral cowardice that has brought us to this point, and we will all regret that. When I met the pro-life people I told them that I have always been pro-life and that the Labour Party were opposed to abortion. I asked those people one or two questions. I said to them: “You are talking about pro-life, the sanctity of life and I would like to know if you would be in favour, for instance, of a prohibition on capital punishment being enshrined in the Constitution”. No, they were not.
Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.
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