An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Coiste (Atógáil) agus na Céimeanna Deiridh . Eighth Amendment of the Constitution Bill, 1982: Committee Stage (Resumed) and Final Stages .
Wednesday, 27 April 1983
Dáil Eireann Debate
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 a law on the ground that it prohibits abortion.”.
—(Minister for Justice.)
Minister for Trade, Commerce and Tourism (Mr. Cluskey): : Before Question Time I was describing the interview I had at the start of this campaign with a delegation of people who call themselves pro-life. I explained to the House that, having told them the Labour Party were very definitely pro-life, I asked them if they would consider a constitutional change on the matter of capital punishment. They showed a distinct lack of enthusiasm for that change in the Constitution.
I then mentioned the question of the large number of women and girls who leave this country in order to secure abortions. I agreed with them that this was a very tragic situation. I queried whether any change, such as the one they were seeking to make in the Constitution, would have any effect whatsoever on the number of women and girls leaving the country seeking abortions. I asked them if they would consider campaigning for some changes in social attitudes and other matters such as comprehensive family planning provisions and proper sex education properly supervised in our schools. I did not suggest for one moment that this would eliminate the number of women and girls seeking abortions but that, in my opinion, it would have a significant impact on those numbers. They  showed no enthusiasm for that approach either.
They were single-minded. They wanted one thing, a constitutional amendment in relation to abortion. I told them — and I am extremely glad and proud that I told them — I was not prepared to give that kind of commitment on behalf of the Labour Party. It would have been very good if other politicians had taken the same attitude. I greatly fear the consequences on Irish society of what seems to be inevitable — the decision this House will take today. It will take us back to the thirties and forties. We have seen some very disedifying stuff in the course of this campaign. Unfortunately in my opinion we have just seen the trailer.
I have two reasons for opposing any amendment to the Constitution along these lines. The first is one of principle. It is wrong. It is sectarian in its approach and, more important, it is seen by members of the minority churches as sectarian. It has put a considerable strain on the relationship between church and State. That may be no harm in some cases, but of very significant harm is the fact that it has put back the relationship between the churches for a considerable time. We have not seen the end of that process either.
We have had differences of opinion between the medical profession with some for and some against, and with this opinion and that opinion, and the same in the legal profession. As one eminent Irishman said, in some cases it has turned members of the same family against one another.
An Ceann Comhairle: : The Minister will appreciate that the House has accepted in principle that there will be some sort of amendment. I would be glad if the Minister would relate his remarks to one or other of the amendments.
Mr. Cluskey: : I find it regrettable that I am not being allowed the same latitude as previous speakers, but I still accept your ruling, Sir. There are a number of amendments before the House. There is  what is described as the Fianna Fáil amendment; there is the new Fine Gael amendment; and there are The Workers' Party's amendments. When Deputy Mac Giolla was speaking this morning he mentioned the position of the Labour Party. The position of the Labour Party on this has been consistent from the start.
Dr. Woods: : Excuse me. I have references here.
Mr. Cluskey: : I do not blame the Deputy for laughing.
Mr. O'Kennedy: : Consistent in how many different directions?
An Ceann Comhairle: : There should be no interruptions in a limited debate.
Mr. Cluskey: : In the Fianna Fáil Party there was no moral consideration of this issue.
Mr. Kelly: : Hear, hear.
Mr. Cluskey: : Political advantage superseded every other consideration. If I were in that position I might be able to sit here and laugh too.
Mr. Kelly: : Hear, hear.
Mr. Cluskey: : Unfortunately I cannot. The Labour Party recognised from the beginning that this was a highly moral issue and we accepted a free vote. Our Members can vote on this issue in accordance with their consciences. The 70-odd Deputies over there must have a collective conscience. Either that or they have not got a brain in their collective head.
Mr. Kelly: : Seventy wolves dressed up as Little Red Riding Hood's granny.
Mr. Molloy: : On a point of order, Deputy Cluskey referred to the Fine Gael amendment. May I inquire through the Chair whether such a thing exists as the Fine Gael amendment? Is it not true that the House is discussing a Government amendment?
An Ceann Comhairle: : The amendments are on the circulated list and they are under discussion at the moment.
Mr. Molloy: : Deputy Cluskey stated there was a Fine Gael amendment before the House. There is no such thing as a Fine Gael amendment. Is it not true that what this House is discussing is a Government amendment?
An Ceann Comhairle: : The amendments are on the circulated list. They are in the names of Deputies, they have been moved and are under discussion.
Mr. Molloy: : It is a Government amendment——
An Ceann Comhairle: : I would remind Deputy Molloy that this debate will conclude at 6.30 p.m. It is unfair to waste time.
Mr. Tunney: : On a point of order, I think the Chair can confirm to the House that with regard to a Committee Stage debate the Bill shall be taken word by word and line by line. I think it is in order for me to inquire what words and what lines the Minister is discussing.
An Ceann Comhairle: : I do not know if the Deputy was here this morning when it was agreed to take amendments Nos. 1 to 5, inclusive, and to discuss them together. Those amendments involve two separate Schedules and a number of amendments to one of the Schedules. I appeal to Deputies to be serious about the matter and allow the debate to continue.
Mr. Tunney: : We must remember that this House in the future will discuss legislation different from the legislation before us now. We must never depart from Standing Orders, which govern debate in the House. My question in respect of the contribution being made by the Minister is pertinent. I have listened to him since he started his contribution but he has not referred to one word in any amendment or to any specific amendment. I have hoped that the Chair  would draw his attention to Standing Orders, which he obviously does not understand.
An Ceann Comhairle: : I do not know if the Deputy was here a short time ago when I drew the attention of the Minister to the matter.
Mr. Tunney: : It does not seem to have benefited the Minister or the House.
An Ceann Comhairle: : The Deputy may leave that matter to the Chair.
Mr. Cluskey: : I wish to reassure Deputy Tunney that the line I am taking is my own line, unlike him and some of his colleagues——
Mr. Tunney: : The Minister is still bound by the rules of the House. The Government's amendment is before the House——
An Ceann Comhairle: : Deputy Tunney is being disorderly.
An Ceann Comhairle: : I appeal to Deputies to allow the Minister to speak without interruption.
Mr. Cluskey: : I can appreciate the frantic attempts to stop me from saying some of the things I have been saying about the Deputy's party, but that will not deter me. I was talking about the number of amendments before the House. This morning Deputy Mac Giolla spoke about the position of the Labour Party with regard to the amendments and I was trying to clarify that for the Deputy. I can appreciate the difficulty for any Deputy in this House, but more particularly for people outside the House, who are confused on this issue and the stance taken by parties and individual Deputies. I am extremely confused by the attitude of The Workers' Party on this matter. I thought Deputy Mac Giolla made a very good speech this morning in relation to the confusion that would exist with regard to the law as it now operates under the 1861  Act if any of these amendments are enshrined in the Constitution. I thought he made an extremely good case, but he kept saying he was totally opposed to any amendment to the Constitution. However, although that party are opposed in principle they have submitted amendments, and I find that a little confusing. I find it smacking a little of political opportunism which, regrettably, has been the main feature of this whole sad and sorry affair. It is regrettable that Deputy Mac Giolla and Deputy De Rossa at the last moment, out of an apparent sense of panic, have tried to grab some of that action. When this whole matter is viewed in retrospect in a calmer light I do not think there will be any glory, benefit or credit in that approach.
I have spoken to many people, particularly young people, with regard to this matter. I accept that there is a considerable amount of confusion, but where there is a knowledge of what is going on, where young people have been able to tease out the implications of what is going on, the vast majority have seen the campaign for what it is and have rejected it.
I said I had two reasons for opposing an amendment to the Constitution. First, I oppose it in principle because I think it is sectarian and divisive and will do incredible damage to Irish society. Secondly, no matter which amendment ends up enshrined in the Constitution, it will have one of two effects. Either it will increase the risk to the expectant mother or it will increase the risk to the unborn child. As it stands the law is adequate and the proof of that is that literally thousands of women who are resident citizens of this country go elsewhere to seek abortions. They do that because the present law is so effective that abortions cannot be obtained here.
One of the most regrettable features of this whole affair is the attitude we adopt on other major social issues, such as the two I mentioned to the so-called pro-life group which might have an effect on the number of girls or women who find themselves having to seek abortions. People talk with contempt of these women and  girls who seek abortions. I wonder if they ever look at it from another point of view, of sometimes very young and inexperienced girls who find themselves in this situation in a society like ours which unfortunately is once again proving itself to be so unChristian in its attitude, approach and understanding. Do they ever get a mental picture of a poor unfortunate woman finding herself in such circumstances, filled with fear of her fellow Christians and their attitude? I am totally opposed to abortion but, at the same time, if we are so quick to condemn it is a great pity we are not a little quicker to help and understand.
In this House there are rules that must be obeyed and some restraint has to be exercised by virtue of the rules of the House and the Chair's guidance over the affairs of the House. We have received some indication of how this debate will develop. Deputy Oliver J. Flanagan has insulted a leading churchman, Dean Griffin, a man whom I have known for years and who is a truly concerned Christian gentleman. We have had that happening inside the House and can we imagine, for one moment, what will be said at the after-Mass meetings and at the hustings? What way will this campaign develop once this thing is passed tonight, which apparently it will be, and what damage will it do to Irish society?
Mr. O'Kennedy: : Which thing?
Mr. Cluskey: : Any of them.
Mr. O'Kennedy: : It is all the same to the Deputy?
Mr. Cluskey: : I have said it from the beginning——
Mr. O'Kennedy: : I want clarification. Is it the Government amendment which is unacceptable to the Deputy?
Mr. Cluskey: : I have said from the beginning that I am opposed, in principle, to any amendment of this issue being inserted into the Constitution. The Deputy has not discovered anything.
Mr. O'Kennedy: : The Deputy said “this thing”.
Mr. Cluskey: : The Deputy has had his head down so much during this whole debate that I am not surprised that he might have thought he discovered something. He might discover a lot more before this thing is finished.
That is what I fear about this. The argument has been put — and there is a justification for it — that The Workers' Party have put in amendments as a fall-back decision. Another speaker described it as the lesser of two evils. I have only one attitude towards something which I recognise as evil — I oppose it. I want to make this clear. I am not speculating, I know there are Members of this House who have genuine conscientious objections, who have genuinely sat up at night and worried themselves sick trying to arrive at the proper judgment according to their consciences on this issue. I might not agree with the conclusions they reach, but I respect them for them. I am not speaking about people who have tried to make a professional career out of it, but genuine people, not necessarily in agreement with me.
I find it extremely difficult to accept the attitude of Fianna Fáil on this issue. Even at this late stage I appeal to Members on all sides not to let any amendment on this issue go through this House, not to create a situation — which I believe to be inevitable — in which this campaign, if any amendment is passed, pulls out into the streets and into every parish, village, town and city. It will be the most divisive thing that we have seen in this country since the thirties. This House is not at the people's demand or insistence, except for a small fanatical group, to inflict this amendment on Irish society. I appeal to Deputies on all sides not to do that. We will all regret it.
Dr. O'Hanlon: : I have listened at length to Deputy Cluskey who talked about moral cowardice and about how Irish society is going to pay for this amendment. He did not explain in any way how society is going to pay for it. He stated that this amendment is not about abortion,  that it is a political issue. This amendment is about abortion, that is the reality of it. It is about the politics of how abortion, if it is ever to be introduced here, will be introduced.
Like many other speakers I am disappointed at the political nature of the debate over the last few months. It has been an extraordinary debate. However, it is only right that the blame should be laid where it belongs, and that is on the shoulders of the Taoiseach. Last November the Taoiseach was absolutely clear where he stood on the issue in numerous pronouncements, one of which was, in referring to the original wording of the Bill circulated: “I think it is the best Amendment we can get and it seems sensible to say so in these circumstances.”
He also stated:
What we had proposed and I pressed this very strongly in my Ard-Fheis speech, was that it should be literally a pro-life amendment which would strengthen the protection of life, the life of the unborn, and I was very relieved the amendment took that form. I feared it might take the other form and when we examined it carefully and saw the wording of it and took advice on it, it seemed to us that it was about as good a formula as you could get. I have to admit that in the Government's favour.
The Taoiseach said that last November. The reason for the debate developing so unsatisfactorily is that he did a U-turn on his thinking on this issue. The Bill which was circulated in November was circulated again to this House by the present Government as their Bill in the last days of January of this year. Why was the Bill circulated then when there were these doubts about it? The Government had then been in power for six weeks and if they began to have doubts about the wording in this Bill I cannot understand why they circulated it to this House in January as their Bill. That is where the blame lies for the nature of the debate which is taking place.
On 16 February, selective passages from advice given by the Attorney General  to the Government were published in The Irish Times. Why was not all the text given to The Irish Times for publication? That would have been a valuable contribution to this debate.
I listened this morning to the Minister for Health. In all honesty, I was appalled at what I believe is an abuse of his ministerial position in some of the comments which he made and, indeed, in some comments which he is reported to have made about the risk to women's lives if this amendment goes through. One would particularly expect the Minister for Health to be conscious of the damage which he can do to Irish women of the child-bearing age by making comments, which are totally without foundation and for which there is absolutely no basis, that if this amendment goes through, women will be condemned to death. The Taoiseach made similar comments and I will come to them later.
This morning, the Minister for Health stated very seriously that legal interpretation of this form of wording would resolve the conflict of rights in such a way as to prohibit medical treatment which is currently available for life-threatening conditions. That is totally false. If our wording is written into the Constitution by way of an amendment, it will have absolutely no effect on the law as it stands at present. The 1861 Act will still be the law. He stated that every year between 300 and 500 ectopic pregnancies occur in Ireland. I consider those figures too high, based on the information available, but the number is not important. What is important is to give the impression to anybody that if there is an ectopic pregnancy present, in other words, if there is a pregnancy in the fallopian tubes, because of this amendment, or because of a change in the Constitution, a woman's life would be put at risk. The treatment for an ectopic pregnancy is to remove the tube containing the pregnancy. Some of my very eminent obstetrical colleagues inform me that at operation they have never seen a live foetus in the tube when they removed it. I cannot understand how the Taoiseach, the Minister for Health or anybody else who talks  about it would expect that somebody might go to the court, to the High Court or Supreme Court to ask that a woman be allowed to continue her pregnancy, if there was a pregnancy in the fallopian tube, because it is not compatible with life. No court would give a decision that would kill the mother, first of all, also knowing the fact that the pregnancy in the tube was not compatible with life.
The Minister for Health this morning quoted the Dean of the School of Medicine in Trinity College about medical care for the mother, that is, that it is a universal feature of medical care that the mother is accorded priority where necessary treatment may harm the foetus. The Minister continued to say:
He instanced the use of antibiotics or treatment for acute leukaemia which might have an adverse effect on the foetus.
No court, no doctor will decide that he will not treat pneumonia or leukaemia. The standards of medical treatment are laid down very clearly. It is no harm to point out that medical ethics and treatment are regulated by the Medical Registration Council which was set up by an Act of this Oireachtas, the Medical Act. The treatment is straightforward, treatment for these conditions that has been continuing for the last 120 years since the 1861 Act.
What was interesting this morning was that the Minister for Health did not quote from the professors who commented on the Taoiseach's wild remarks — I suppose that is the right way to describe them — that the original wording of the 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 here and in the United Kingdom. The professors stated and I quote:
Dr. Fitzgerald has also cast doubt on the legality of existing, well-established medical practice. This cannot go unchallenged. 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 difficulty in the proper discharge of our professional responsibilities.
I am surprised that that statement was not included in the Minister's remarks here this morning. That statement was signed by Professor John Bonnar, Professor Eamon De Valera, Professor David Jenkins, Professor Kieran O'Driscoll and Professor Eamon O'Dwyer, all eminent men in the field of obstetrics.
Neither the Minister for Health this morning nor the Attorney General on radio on Sunday mentioned what I believe is a very important part of the wording of the original amendment, that is the qualifying phrases: “with due regard to” and “as far as practicable”. That is very important. When they say that a court will decide in law on the basis of the wording before it that both lives are equal and that because of that wording — leaving out the two phrases I have mentioned — the court will decide that the mother's life cannot be saved. Having regard to those two phrases it is obvious that even if a case were to be brought before the courts the courts would not interpret the Constitution to say that the woman's life must be put at risk in order to save the child.
Again to quote the Minister for Health this morning:
Above all other considerations this proposed Constitutional amendment affects the future wellbeing of every woman now of child-bearing age in our Republic and of women yet to be born in our State.
Then he continued with an extraordinary piece as follows:
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.
In my view that is very intemperate language. Indeed if one continues to read the Minister's remarks this morning he makes the point himself when he said:
It is also difficult to avoid the conclusion that the deep feeling of our people on this important issue is being used as a weapon in a party political conflict.
I believe that describes exactly the quotation I have read about an almost all male and almost all Catholic Dáil. As far as I am concerned, this has nothing whatever to do with sectarianism, has nothing to do with the Catholic Church, Protestant Church. It should be the same law for the atheist, the Jew, anybody, because if one goes back — and there is medical input into this — to the Hippocratic Oath which was 4,400 years before Christanity, before Christ himself, there it is mentioned that abortion should not be procured on a woman. That is the basis of my thinking on the subject.
The Minister for Health spoke this morning about the 55,000 women on the pill here and the 2,000 to 3,000 women who use intra-uterine devices, the importation of which is illegal. This has nothing to do with this amendment. If written into the Constitution this amendment will in no way change the existing law and has nothing to do with what is being used as a contraceptive device. Even if one were to accept that the intra-uterine device was an abortifacient it would be impossible to bring a court case and to prove it because the first thing one would have to do would be to prove that the woman was pregnant in the first place.
Mr. Kelly: : Did it ever cross Deputy O'Hanlon's mind before the 1981 election that this amendment was necessary ——
An Leas-Cheann Comhairle: : Deputy O'Hanlon to proceed without interruption.
Mr. Kelly: : —— he is no baby, he did not get all this wisdom with his first Christmas.
An Leas-Cheann Comhairle: : Deputy Kelly, please. Deputy O'Hanlon to proceed without interruption.
Mr. Tunney: : The Spanish sun did not do the Deputy much good.
Dr. O'Hanlon: : Deputy Kelly is referring to the period before the 1981 election. The Ceann Comhairle, my constituency colleague, decided this morning that we should not go back that far. I will not go back that far because——
Dr. O'Hanlon: : —— it would further embarrass the Taoiseach who made a promise to people at that time and did not honour it — a promise made in 1981 on behalf of the Deputy's party and then came out and gave the same promise last November and did not honour it.
An Leas-Cheann Comhairle: : Would Deputies please allow Deputy O'Hanlon to continue.
Dr. O'Hanlon: : This is a fundamental issue about the right to life.
Mr. Kelly: : When did that first enter the Deputy's mind?
Mr. Gene Fitzgerald: : Deputy Kelly should withdraw that remark.
Dr. O'Hanlon: : That entered my mind away back when I was able to——
Mr. Kelly: : The Deputy never opened his mouth about it, nor did any of his colleagues——
An Leas-Cheann Comhairle: : I am asking Deputy Kelly for the last time to restrain from making any more remarks——
Mr. Gene Fitzgerald: : Deputy Kelly should withdraw those remarks.
Dr. O'Hanlon: : For the benefit of Professor Kelly I resent the implication, particularly in my capacity as a medical doctor, that the right to life only entered my mind at some time since the 1981 election.
Deputies: : Deputy Kelly should withdraw it.
Mr. Kelly: : I never said that. I said the necessity for an amendment never entered Deputy O'Hanlon's mind until then. I never made such an accusation against Deputy O'Hanlon. I said that the idea that an amendment of the Constitution might be needed never entered his mind, or that of his colleagues——
Mr. Gene Fitzgerald: : The Deputy is changing his words.
An Leas-Cheann Comhairle: : This is becoming most unruly.
Minister for Justice (Mr. Noonan: , Limerick East): On a point of order, if we had a proper Committee Stage debate it might not become unruly. Nobody is addressing himself to a Committee Stage situation. We are having a Second Stage debate all over again.
Mr. Tunney: : The Minister did not have anything to say about the speech of the Minister for Trade, Commerce and Tourism in that respect.
An Leas-Cheann Comhairle: : That type of speech is the type we have been having all day, unfortunately.
Mr. Noonan: (Limerick East): This morning I analysed both sets of wording and by way of reply, I had a Second Reading speech from Deputy Woods. The subsequent speeches have been in the same vein.
Dr. Woods: : On a point of order, I tried  to enlighten the Minister as to the meaning of the words which so far he seems not to have comprehended or at least is not prepared to listen to. I cannot be blamed for that situation.
Mr. Birmingham: : The Deputy was afraid to address himself to the wording.
An Leas-Cheann Comhairle: : All Deputies are aware of the limited time available for the debate. I am asking Deputy O'Hanlon to continue, without interruption.
Dr. O'Hanlon: : I agree with the Minister that we should address ourselves to the Committee Stage. I have before me a copy of the statement made by the Minister for Health this morning and I consider that I am entitled to reply to that Minister's comments. He said that the provisions of the 1861 Act are adequate to meet our needs in relation to abortion. I would not agree. The 1861 Act is still on the Statute Book in the UK but there is also there the 1967 Act which exempts doctors from culpability within the terms of the former Act if two doctors believe that a woman should have an abortion. As a result of the 1967 Act there have been more than 2 million abortions in Britain. Consequently, I do not consider the 1861 Act to be sufficient for us either.
Mr. Shatter: : There is no similarity between the position here and the position in England. The Deputy knows that what he is saying is nonsense.
An Leas-Cheann Comhairle: : Would Deputy Shatter please wait his turn?
Dr. O'Hanlon: : At intervals of about six months an effort is made in the UK to bring in legislation to curtail the 1967 Act, to revert to what was intended originally by the proposers of that Act. The last such occasion was in December in the House of Lords.
The Minister for Health tells us that it is an insult to the Members of this House and to the traditions of democracy in Ireland that the suggestion be made that  we should have a referendum of this kind. I do not understand that. Surely on such a fundamental issue we should go to the people for a decision. We must face the fact that abortion is a divisive issue, that there are people who are opposed to abortion and that there are people who favour abortion. The only fair way of ensuring that the right decision is arrived at is to let the people have their say and to give them the opportunity, if they so wish, of having the amendment incorporated in the Constitution.
The question of sectarianism has been raised in relation to this issue. The Minister for Health said that if he were a member of the Northern Ireland community he would take a very poor view of what was going on down here. It is no harm to remind the Minister that two leading politicians on the Protestant side in the North, Mr. Paisley and Mr. Molyneaux, opposed vehemently an extension of the 1967 Act to Northern Ireland. Regardless of what view anyone may have in relation to abortion, there will be respect for a society who are prepared to stand for the right to life of the unborn.
The Minister referred at length to the number of girls going to the UK to have abortions. I commend him for bringing up the matter with the Medical Research Council with a view to having the situation studied further. I should hope that as a result of this debate here, the conscience of each of us would be stimulated into thinking of what we might do to ensure that it will not be necessary for any girl to seek an abortion.
The difference I see in the original wording as circulated in the Bill and the wording proposed now is while there has been a lot of legal conflict about the existing wording, the new wording would mean that abortion could be introduced here at some stage without the question being put to the people by way of referendum. We must refer to the Constitution on such issues as land ownership and divorce. Is it not only right that the Constitution should also include the issue of abortion so that it would have to be referred to in the event of there ever being a question of the introduction of abortion?
 The Pro-Life Amendment Campaign group consist of eminent legal and medical people and they are satisfied that the original wording proposed would not in any way cause problems for the medical profession. In a statement which they issued yesterday they had this to say:
Let it be clearly stated: there is nothing in the original form of words which would pose the slightest danger to Irish women. No established medical practice would be interfered with, doctors would not find themselves powerless to intervene to save the lives of mothers and nothing in the amendment would oblige any court anywhere to forbid operations already legally and ethically permissible.
Mrs. Owen: : Who was the doctor who issued that statement?
Dr. O'Hanlon: : I said that it was a statement issued yesterday by the Pro-Life Amendment Campaign people, a group comprising a number of eminent doctors and legal people. They include the professors who were so critical of the Taoiseach for his wild and frightening statements to women.
Deputy Mac Giolla referred to my reference at Second Stage to treatment in the case of a ectopic pregnancy. I have referred to that again. What happens in such cases is standard procedure. The same applies in relation to cancer of the womb, a condition which Deputy Mac Giolla said is common. That is not the case. The last report available in this respect shows that five women under 45 died from cancer of the womb in 1973 while in 1976 the figure was eight. There is no indication, admittedly, that these women were pregnant. It is important to realise that the writing into the Constitution of the pro-life amendment as put forward by us would not change in any way the 1861 Act. That will be the law still.
It was wrong for the Taoiseach, the Minister for Health and the Attorney General to mislead the people in the way they did. They have caused unnecessary  concern among women who are expecting and those who are now going to their doctor asking if it is true that their life will be at risk. That is deplorable, and then on the Government side of the House they talk about the level and type of debates but that is the reason the debate has followed a certain line. As a medical doctor and a politician, I am satisfied that our wording is satisfactory and should be voted through the House this evening.
An Leas-Cheann Comhairle: : I am calling Deputy Shatter.
Mr. Flynn: : On a point of order, will the Chair indicate to the House if he is working from a list?
An Leas-Cheann Comhairle: : I have a substantial list.
Mr. Flynn: : Is it possible for the Chair to inform the House the Members who are on the list?
An Leas-Cheann Comhairle: : I have six Members on the list, including Deputy Shatter, rotating from one side of the House to the other.
Mr. Flynn: : Is it normal on Committee Stage to keep a list of speakers to be taken from one or other side of the House? There are certain matters concerning the wording introduced by the Minister for Justice this morning that we would like to challenge him on but we will not get that opportunity if the Chair has a list.
An Leas-Cheann Comhairle: : I was here earlier today and I can recall that the Deputy was not present. Many other Members have offered and contributed on this subject. If the Deputy would permit the debate to continue, he may get an opportunity later.
Mr. Flynn: : On a point of order, it is not the business of the Chair whether I am in here or not and, to satisfy the Chair further, I was in the House.
An Leas-Cheann Comhairle: : It is my business to advise the Deputy that a number of Members offered prior to the Deputy standing up at 4.25 p.m. If the Deputy will permit me to continue he may get an opportunity in due course to make a contribution. The Deputy should respect the Chair. I would expect a lot more from the Deputy.
Mr. Flynn: : The Chair is being respected but the Chair should not be so sensitive about questions on the order of business in the House. To put the matter straight, I should like to emphasise that I was present this morning when the debate commenced. I was present when the Minister for Justice made his speech and when Deputy Dr. Woods replied. It is not correct to say that I was not present. I indicated to our Whip that I wished to make a contribution but I understood that the debate would carry on in the same way as any other Committee Stage, that Members would get an opportunity of discussing in depth with the Minister aspects of the wording he was proposing. However, a list has been put together so that speakers know in advance on this Committee Stage when they will be permitted to speak. Consequently, because of the amount of time remaining, there will only be an opportunity, if people are permitted to continue to make Second Stage speeches, for about three or four more Members to get in. That is not fair or right when dealing with a matter on Committee Stage.
Mr. Shatter: : The Deputy should have expressed that view to Deputies Woods and O'Hanlon.
Mr. Kelly: : If it is not an impertinence I should like to state that I entirely support what the Chair is doing. It seems to be the only fair thing to do. I can recall debates in the House on financial legislation in 1974 and 1975 when Fianna Fáil speakers allotted to debate those Bills occasionally on Committee Stage spoke for one hour or an hour-and-a-half or more without stopping.
An Leas-Cheann Comhairle: : I am most  anxious that all Members get in on the debate and I appeal to those who get an opportunity of speaking to be brief. Perhaps Deputy Flynn will then be able to get in.
Mr. Flynn: : Is my name on the list?
An Leas-Cheann Comhairle: : No.
Mr. Flynn: : Would the Chair mind adding it to the list?
An Leas-Cheann Comhairle: : Not one bit.
Mr. Flynn: : The Chair has indicated that there are six speakers on his list——
An Leas-Cheann Comhairle: : There are eight now.
Mr. Flynn: : Will the Chair indicate if there will be a speaker from this side of the House after Deputy Shatter or will he be moving in a different direction?
An Leas-Cheann Comhairle: : I am aware of the method to be adopted when calling speakers and the Deputy can be assured that the impartiality of the Chair will be continued when I am here. The Deputy should allow Deputy Shatter to commence.
Mr. Flynn: : In normal circumstances one would expect that the Opposition would be taking up most of the time on Committee Stage in questioning the Minister and I regard the efforts of Fine Gael, Labour and The Workers' Party Members as a device to ensure that we do not get an adequate opportunity of challenging the Minister on this matter.
An Leas-Cheann Comhairle: : That is very unfair. There are eight speakers on the list in front of me, four from each side of the House, and if that is not impartiality I do not know what to say.
Dr. Woods: : We accept that the procedure has been unusual. The Minister for  Justice made a speech at the outset and the Minister for Health also made a speech. That is unusual. We tried to set out our position as well as possible. We are anxious to know if the Minister is going to reply to any of the questions which have been put or the points made.
Mr. Shatter: : What questions?
Dr. Woods: : I asked the Minister about the sectarianism he was clear about. He said his amendment was not sectarian and yet two of his Cabinet colleagues have said it is. Will the Minister deal with such questions? From time to time the Minister should give his response to the points being made.
Mr. Gene Fitzgerald: : Will the Chair indicate the name of the speaker to follow Deputy Shatter?
An Leas-Cheann Comhairle: : Deputy O'Kennedy, and I hope all Members are satisfied.
Mr. Gene Fitzgerald: : I hope the Chair did not mind me putting that question.
An Leas-Cheann Comhairle: : I never mind the Deputy putting a question.
Mr. Noonan: (Limerick East): I am happy to come in at any stage, but certainly I want to get in before the debate concludes. However, there was little point in intervening before now because no substantial point was made which related to Committee Stage.
Dr. Woods: : That statement is unbecoming of the Minister.
An Leas-Cheann Comhairle: : It is now 4.30 p.m. and the House has but two hours to deal with the matter. I hope speakers will appreciate the situation and act accordingly.
Mr. Shatter: : Like other Members I regard this as a sad situation and a sad debate. On 17 February I spoke at length on this issue and I do not intend to spend  as long on the matter now. On that occasion I sounded certain warnings and, unfortunately, they have all been proved right. On that occasion I looked in detail at the wording originally proposed by Fianna Fáil for a constitutional amendment. I pointed out, as a lawyer with no axe to grind other than taking the position which is identical to that of all Members, somebody who is opposed to abortion and disagrees with it, and sounded a whole series of warnings as to the possible consequences if those words were put to the people in a referendum and were later inserted in the Constitution. Those warning notes were reiterated by the Minister, Members on this side, the Attorney General and the Director of Public Prosecutions, a matter that has not been adverted to. I appealed to Deputies opposite to deal with this issue not as a matter of party politics or as a political football but to engage in proper, sensible dialogue to see, if we have to have a referendum, if it would be possible to put an appropriate form of wording to the people. I was anxious that the wording should not be ambiguous or create the difficulties that may be caused by the Fianna Fáil wording and would deal in a sensible and non-divisive way with the problem presented to us. On that occasion I said I suspected that I would not be listened to by Deputies opposite, that we were engaging in a dialogue of the deaf.
Mr. Flynn: : Some of the Deputy's colleagues have not listened to him.
Mr. Shatter: : We are still engaging in a dialogue of the deaf. In fact, today's speeches by Deputies opposite do not have anything to do with Committee Stage. Questions have not been put to the Minister and Members have not tried to tease out the advantages of the different forms of wording before the House. We have had from Deputies Woods and O'Hanlon a series of assertions that their form of words is correct and will not cause any problem to anybody. Because the pro-life amendment campaigners said the amendment will not cause any problem to anybody, ipso facto it will not  cause a problem. We have had statements trotted out from eminent doctors and lawyers, but of course a person is always eminent if their point of view coincides with the political point one is trying to make.
There has been a total failure on the part of Members opposite to refer to comments made by many concerned members of the medical profession, by many concerned lawyers and by many churchmen of all churches who have expressed grave and serious doubts and worries about the form of wording contained in the Fianna Fáil amendment. We have had the five gynaecologists trotted out to us on a regular basis. No mention has been made of more than 100 members of the medical profession who issued a statement on 25 January expressing extreme concern about the consequences of this form of words becoming part of our Constitution. No effort has been made to tease out the conflicting views which have been expressed by people whom we would all regard as eminent. I regard Dr. Henry of the Rotunda Hospital as being as eminent as Dr. de Valera. I do not have to attach the qualification of eminence only to those members of the medical profession who hold views I wish to propagate for political purposes. There has been no attempt made to see if some meeting point could be reached in putting an appropriate form of wording to the people in a referendum.
Deputy Woods, suffering from a form of political infallibility, has indicated that he is right and because he says he is right we are supposed to believe him. We are engaged not in discussing what is an appropriate form of wording to put to the people in a referendum; we are engaged in a piece of party politics. We are playing political football with an issue which is of genuine concern to many people outside this House. At the end of the day we are not talking about the issue at all; we are talking about a beauty contest — do the people on the far side of the House regard Charlie as more beautiful than Garret or do we over here regard Garret as more beautiful than Charlie? The issue has  long since been lost in a plethora of party political commentary.
Let us try to deal with the wording we are supposed to be discussing on Committee Stage. Deputy Woods made some references to the wording of the Fianna Fáil amendment and gave to this House the benefit of his interpretation of the effects of the Fianna Fáil wording. He said it has been established in the courts in the context of existing personal rights contained in our Constitution that none of these personal rights is absolute or unlimited and he stated that the Fianna Fáil proposal does not contain absolute or unlimited rights for the unborn. He went on to say that the law of the State may make provision for the right to life of the mother when it is threatened and that the mother will be entitled to medical treatment for illness, even if such treatment would result in termination of pregnancy. I do not know what Deputy Woods means by that. Does he mean that the Fianna Fáil amendment allows the State to pass legislation to permit abortion? That is what he seems to be indicating.
Dr. Woods: : That is a misrepresentation of what I said.
Mr. Shatter: : Is he merely putting forward the proposal that the Fianna Fáil wording copperfastens the existing law? If it copperfastens existing law in some way, as Deputy O'Hanlon says, why is it that the Director of Public Prosecutions has announced that if this form of wording becomes part of the Constitution he may not be able to prosecute anybody who carries out an abortion?
Dr. Woods: : Could we have a reference?
Mr. Shatter: : Deputy Woods is becoming agitated now because the truth is coming home as to what he and his party are about in this amendment.
An Leas-Cheann Comhairle: : If you quote you must give the reference.
Mr. Skelly: : He did not quote.
Mr. Shatter: : The DPP has expressed grave concern as to the possibility of bringing proceedings under the 1861 Act if this amendment becomes part of the Constitution. Deputy Woods has admitted in this House that the wording of the Fianna Fáil amendment is ambiguous and open to a variety of different interpretations. That is what has been said by Members on this side. He has admitted that it is deliberately phrased not in absolute or unlimited terms but is phrased in a vague way whereby there are different rights in existence upon which at some stage the courts will have to adjudicate.
My understanding of the case put by those who propose the need for an amendment is that we need certainty in this area of the law, that the courts should be kept out of it and that the matter should be decided once and for all by way of some provision in our Constitution. It is clear that the matter will not be decided once and for all by the inclusion of these words in the Constitution because the courts will have to tell us what all these words mean.
We have heard from Deputy Woods and Deputy O'Hanlon that in the context of these words being included in the Constitution by holding a referendum we are engaged in a democratic exercise. They ask whether it is not right on a fundamental issue of this nature that the people should be given an opportunity to make a final decision and to take the issue out of the hands of this House and, presumably, since this was the original rationale, to take the decision out of the hands of the courts. The people will pronounce in referendum that this is the form of wording we have, the tablets of stone will be handed down to us and there the matter will rest uncontested. Of course that is not the case because if the Fianna Fáil form of wording becomes part of our Constitution it may prevent the elected representatives in this House from enacting legislation to permit abortion — something no members of any party has suggested he would do or is desirable — but it will place it in the hands of five members of the Supreme Court to introduce abortion if they see fit on the phraseology  of the wording proposed by Fianna Fáil. This is the inverse of democracy. We are asking the people in a referendum on this form of words to deprive this House of jurisdiction or entitlement to legislate in this area and to transfer that authority to five members of the Supreme Court. Where is the democracy in that? The only way this would be a democratic exercise would be if there were some full and final set of words which were not open to a mixture of different interpretations, a form of words which people could clearly understand and vote for. That is not the case with the Fianna Fáil wording.
Just as Members opposite have milked the notion of eminence to give some sort of credence to their case, I would equally milk it by saying that there are as many eminent members of the legal and medical professions who see extreme dangers in this form of wording as there are members who are supporting it. From the calculations I have seen there are a damn sight more people who are opposed to it than there are people supporting it. The five eminent gynaecologists are a damn sight more noisy than are the 100 or more doctors who issued a statement on 25 January and looked aghast at the insanity in this House. Let us get away from the shibboleth of suggesting that this referendum is about asking people to make a democratic decision, if the Fianna Fáil wording goes to the people. It is about asking the people to put a form of words into the Constitution, the meaning of which no one in this House can be certain, other than Deputies O'Hanlon and Woods who have this infallible interpretation to which they feel they can adhere. They are convinced it is right because they have been told it is right by people who think it is right.
I do not think it is necessary for me to go into any detail about the defects in the wording of the Fianna Fáil amendment. The Minister has referred to them already and I have referred to them at length previously, as have colleagues of mine. It is interesting to note that Deputies opposite have not been willing so far to engage in a Committee Stage analysis  of the words contained in their amendment. They have not yet touched on the problem so well and unusually referred to by the Director of Public Prosecutions. It is interesting to note that all they can do is support the form of words they are proposing by assertion and by reference to other assertions made by other people. We have on the opposite side of the House a great monolithic party who believe that discipline on all issues is essential. Members vote parrot-like on whatever issue comes before them on the basis of what they are told by the party leader. Fortunately, in the Fine Gael Party, we have people who exercise their minds in regard to their responsibilities as legislators more seriously than merely being some form of lobby fodder to make crass political points. I know, as do Members opposite, that there are a number of members of the Fianna Fáil Party who are as concerned about the implications in the Fianna Fáil wording as some Members probably are on this side of the House. They are frightened to say a word about it in the House, they are frightened to articulate that concern because, if they do, they will be hounded out of the party for daring to act as legislators, for daring to sound a warning.
Dr. Woods: : Nonsense. That is political rubbish.
Mr. Shatter: : It is amazing the way one touches a nerve when some home truths are told to Members of the House opposite.
Mr. Shatter: : The great tragedy is that those Members in the Party opposite will not, in the context of an issue that should not be political, in the context of an issue that is a matter of genuine concern to many people, stand up and be counted in the House and act as legislators.
Mr. Flynn: : Will the Deputy name them?
Mr. Shatter: : The Fine Gael wording has a number of advantages about it.
Mr. O'Kennedy: : Is it the Government wording or the Fine Gael wording? Could we be clear on this? Is this amendment to the original Bill a Government amendment or a Fine Gael amendment? It is important to know that.
An Leas-Cheann Comhairle: : It is down in the name of the Minister.
Mr. O'Kennedy: : And presumably representing the Government.
Mr. Shatter: : I welcome Deputy O'Kennedy to this debate. His presence has been more notable by his silence than his contribution to it.
Mr. Shatter: : In relation to the Fine Gael wording proposed by the Minister for Justice there are a number of advantages in it that clearly place it in a far superior position in the context of a form of wording to be put to the people. It is not ambiguous. There is no doubt about what it says. It says that no law can be declared unconstitutional by reason of the fact that it prohibits abortion. It copperfastens the 1861 Act. It does not create any problems for the Director of Public Prosecutions in bringing prosecutions under that Act. It prevents the Supreme Court, as some people seem to believe is necessary, legislating for abortion through the side door by way of judicial decision. It achieves all the objectives originally set out and described as needing to be dealt with by the Pro-Life Amendment Campaign.
There has not been any sensible or logical suggestion made by Members opposite in their contributions why the Fine Gael wording does not adequately meet the situation. We are told by Deputy Woods, parrot-like, that it is not pro-life. That is a fine phrase. It is anti-abortion. I presume that if you are anti-abortion you are pro-life just as if you are pro-life you are anti-abortion. We are not engaged in dealing with what is a desirable constitutional amendment. We are engaged in an exercise of political semantics  for the purpose of scoring political points. If it is anti-abortion it is pro-life. Is anybody suggesting that if it is anti-abortion it is anti-life? Is there any Member opposite who can suggest some interesting logical reasoning that can reach that conclusion? I have not heard it said but, parrot-like, we trot out: “Ah, well, it is not pro-life”.
I am a Deputy in this House for only two-and-a-half years, I am only a mere lawyer; I have only been working in the family law area for about ten years. I accept that I am something of a political innocent and maybe I am missing something in this. The only thing I am missing in this is the game Members opposite are trying to play, which is to suggest that because Fine Gael have proposed a new form of wording maybe somewhere in the Fine Gael Party there are people who will be sneaking in some time, some day, to promote legislation to permit abortion in this country. Every Deputy opposite knows that is absolute nonsense. There is nobody on this side of the House who would favour the introduction of legislation to permit abortion but Members on this side of the House are concerned that the Fianna Fáil wording might be the very vehicle by which abortion could be introduced through our courts' system. That is something the Members opposite will not countenance as a possibility.
There is no possible argument to be made by supporting the Fianna Fáil wording as opposed to the Fine Gael wording other than that of political point scoring and using this as a cynical exercise to do what Charlie wants, in some way to use this issue to embarrass Garret. They feel that it is a great issue and they have got everybody wrong footed. It is the most cynical, disgusting piece of politicking I have seen in the House since I came in here, on an issue concerned with amending the Constitution.
I have said in other places as well as in the House that in real terms there is no legal necessity for an amendment of any nature. I spoke at length on this when I made my contribution on 17 February last. I have been confirmed in that view by a judgment of the Supreme Court last  Friday. In that case the Chief Justice and Mr. Justice McCarthy, a dissenting judge, indicated quite clearly that in their view the Constitution as it stands at the moment protects the right to life of the unborn child. In the context of that case Mr. Justice McCarthy said that he could not delimit the area in which the State might constitutionally intervene to restrict the right to privacy. It is the right to privacy that the Members opposite and the pro-life campaign have suggested might result in the Supreme Court providing for some form of abortion. He said he could not restrict the right of privacy nor could he overlook the present public debate concerning the criminal law arising from the statute of 1861 as to abortion, the killing of an unborn child. He said that this was not an issue which arose in the present case but it might be claimed that the right of privacy of a pregnant woman could extend to a right in her to terminate a pregnancy, an act which would involve depriving the unborn child of the most fundamental right of all, the right to life itself. He said he recognised there had been no argument in this particular case in relation to this issue but nothing in his judgment, expressed or implied, was to be taken as supporting a view that the provisions of section 58 of the 1861 Act making it a criminal offence to procure an abortion were in any way inconsistent with the Constitution. The provisions of the Preamble of the Constitution, he went on to say, would appear to lean heavily against any view other than that the right to life of the unborn child was a sacred trust to which all organs of Government must lend their support. As recently as last Friday the Supreme Court indicated clearly that the amendment campaign was nonsense and unnecessary.
Mr. O'Kennedy: : It is not the Supreme Court. It is the obiter dictum of the judge and the Deputy knows that is not the Supreme Court.
Mr. Shatter: : It was a member of the Supreme Court. The Chief Justice expressed a similar view as did Mr. Justice Walsh. As the Deputy is aware, comments  of this nature by members of the Supreme Court are regarded by lawyers as a clear indicator of the state of the law. I hope the Deputy does not disagree with that.
Mr. O'Kennedy: : The Deputy must know that the obiter dictum of one judge is not the view of the Supreme Court.
Mr. Shatter: : I said on 17 February that there was no justification for the exercise we are involved in. It has been accepted by both parties that there is need for a referendum. In the context of that need the wording the Minister for Justice put before us is the most appropriate. If we go to the country with the Fianna Fáil wording we will have a most divisive and unfortunate campaign that will have far-reaching effects and will do untold damage to the perception of the country by minorities living in it. We will hear on the highways and byways the extravagant and inflammatory language which unfortunately we have heard from one or two Members of the House.
Mr. Flynn: : Not if the Deputy supports the decision taken this evening.
Mr. Shatter: : We have also heard it from many people outside the House.
Mr. Flynn: : If the Deputy accepts the decision taken this evening there will be no divisions.
An Leas-Cheann Comhairle: : Deputy Flynn is wasting time.
Mr. Shatter: : If the Deputy opened his eyes and ears and listened and thought about some of the things which people on this side have said——
Mr. Flynn: : Listen carefully to what you are saying. You are being put on record at last.
An Leas-Cheann Comhairle: : Please listen in silence.
Mr. Shatter: : No matter what form of words comes from the House the campaign  which will follow will be divisive. I deeply regret that we are heading into this referendum which is not necessary or justified. If we must have a referendum it should be on a form of words the people understand and about which there is no ambiguity. We must not put a form of words to the people which they will not understand or will not understand the implications of.
The vast majority of people outside the House see this debate as an irrelevancy and something of an obscenity because of the way in which it has developed. I believe from what I have heard directly from some Members of the pro-life campaign that they are deeply shocked at the way the debate has developed in the context of the divisions which have been created between the different churches. I deplore the selective quotations used by Deputy Woods to put forward his case and suggest that all minority religions fully support the proposal his party put to the House. That is untrue. We are not dealing with ordinary legislation but are seeking to arrive at a consensus for amending the Constitution. It is a disgrace for a Deputy of long-standing and particularly one who was a former Minister to try to put forward a case of this nature which he knows is untenable. He knows there are divisions. There are divisions within and between all the churches on this.
Dr. Woods: : I wish to refute that in case it is quoted later on.
Mr. Shatter: : The majority of people outside the House wish this debate would go away. This debate has done something which no one in the pro-life movement originally envisaged. It has taught people what abortion is all about and where one can get an abortion. It is not just Deputies who found themselves assailed by different literature portraying in graphic detail the different forms of abortions one can get. It has been distributed in schools, at ladies' clubs and so on. Instead of ensuring people do not have abortions we have taught them how to have them and where to go to get them. We have done nothing to tackle the real problem of 5,000  women going across the water to have abortions.
I do not believe my contribution will result in any sanity being brought to bear on Members opposite. However, if I did not make my contribution to the debate I would be abrogating my responsibility as a Member of the House to state my views on the issue and attempt, futile as it might be, to influence Members opposite to adopt a more responsible approach to this issue. I do not expect that they will. I suspect we will kick the political football until 6.30 p.m. today. I hope some of the Deputies opposite who have genuine doubts and worries about the issue will think about the implications of the Fianna Fáil wording. They should seriously consider the responsibility which rests on their shoulders as legislators to support a form of wording which does not have the divisive element or the ambiguities contained in the Fianna Fáil wording and which will not transfer responsibility in this area from this House to the shoulders of five members of the Supreme Court.
Mr. O'Kennedy: : I hope it will be possible to have a normal Committee Stage discussion from here on. I do not intend to make a speech but to ask the Minister some questions. Deputy Shatter said this amendment copperfastens the 1861 Act. How does the Minister see it doing that? In his speech this morning, which was unprecedented in that it was a formal speech introducing an amendment on Committee Stage, he said the Attorney General advised the Government that the original words proposed by the Minister, that is, the words “or to deprive of force or effect” were adequate to protect the 1861 Act. The Minister said:
... 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”.
Is the Minister saying there is no need for the extra words to protect the 1861 Act?
Mr. Noonan: (Limerick East): Criticisms were made that by the use of the word “invalidate” legislation passed prior to 1937 would not be covered by this amendment. I do not accept that nor does the Attorney General but because I envisaged a situation where we would spend a lot of time arguing about the effect of the amendment it was decided to strengthen the words. I refer the Deputy to Article 50º of the Constitution:
Subject to this Constitution and to the extent to which they are not inconsistent therewith, the laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of this Constitution shall continue to be of full force and effect until the same or any of them shall have been repealed or amended by enactment of the Oireachtas.
The force and effect phrase is taken from Article 50º and is to be in accord with that and not because the amendment was defective. There is a tendency in this issue to be sidetracked. In my innocence, I wanted the House to debate the merits and demerits of one wording against the other.
Mr. O'Kennedy: : Let us do that now. The Minister has quite clearly put on the record that the Attorney General, who advises the Government on legal and constitutional matters and he, the Minister, acting on the Attorney General's advice in these matters, do not see the necessity for adding any words to protect  pre-1937 legislation to the original words he proposed.
Mr. Taylor: : On a point of order, Deputy O'Kennedy has referred to the fact that the Minister might have submitted an amendment in a different wording——
An Ceann Comhairle: : That is not a point of order, you may not agree with what he said but you cannot stop him from saying it.
Mr. Taylor: : But surely he can only apply himself to the amendment being proposed by the Minister.
Mr. O'Kennedy: : Those words are in the amendment. If that is the view of the Attorney General and if he has advised the Government that invalidation will cover pre-1937 Acts, he is running contrary to the judgment of the Supreme Court which I am sure the Attorney General is aware of and must have so informed the Government in a case that is widely known, the State (at the prosecution of Francis James Sheerin) v. Michael Kennedy, 1966 Irish Reports, page 386. It specifically states:
... the question of determining the validity of a law having regard to the provisions of the Constitution can only refer to laws enacted by the Oireachtas established by the Constitution ... where the law referred to is not expressly referred to as a law of the Oireachtas ... must be treated as meaning that the validity in question is a validity to be determined by the provisions of the Constitution in respect of something purporting to have been done within the terms of the Constitution and within the powers conferred by the Constitution.
I am quoting from a Supreme Court judgment, not as Deputy Shatter has wrongly implied, one opinion from one judge in a matter not before it. He called that a Supreme Court judgment in respect of an obiter dictum of one judge. The Deputy must know that that is not a Supreme Court judgment. I am quoting from a  unanimous judgement of the Supreme Court. It goes on to say:
... the question of determining the validity of a law having regard to the provisions of the Constitution can only refer to laws enacted by the Oireachtas established by the Constitution.
In the light of that, the Minister is telling us that the Attorney General who is charged to give legal and constitutional advice to the Government, said that the original words which referred to “invalidate” could cover pre-1937 legislation. If that is so, the Attorney General and the Minister accepting his advice are flying in the face of established laws and they must know it. I see Deputy Kelly here and if he wishes to make a point——
Mr. Kelly: : I am waiting for a chance to say that the Deputy is completely and utterly wrong.
Mr. O'Kennedy: : If an Attorney General could give that kind of advice to a Government and could ignore the effect of the decision in Sheerin v. Kennedy in 1966, one wonders how reliable the same advice is when he now tells the Government——
Mr. Taylor: : On a point of order——
An Ceann Comhairle: : This is a limited debate and Deputy O'Kennedy must be allowed to make his point.
Mr. Taylor: : I want to make a point of order. It is a limited debate and Deputy O'Kennedy is out of order, in my respectful submission, in making a point which is directed solely to calling into question the professional ability of the Attorney General and which is not directed towards the amendment submitted by the Minister before the House. That is the sole objective of his contribution and he is taking up the time of the House——
An Ceann Comhairle: : I rule that Deputy O'Kennedy is in order.
Mr. O'Kennedy: : The Minister indicated initially that the Attorney General  advised the Government that the original words proposed by him were adequate to cover pre-1937 legislation. I am suggesting they are not. The Minister indicated this morning that even though the Attorney General was so satisfied, he decided to advise, so that we would not be engaged in a time-wasting exercise, that the inclusion of other words “or to deprive of force and effect.” Although not necessary, the Attorney General apparently said to put them in there anyway. Even putting them in does not cure the defect in the ministerial amendment. There is another established principle of law, a principle of construction and interpretation, that where you add words like “or to deprive of force and effect” and they follow specific words such as “invalidation”, then they must be interpreted under the principle of justum generis, of the same nature, as applying to the same condition as the original word, namely, “invalidate”. The word “invalidate”, by Supreme Court decision, only applies and is restricted in this context to post-1937 Constitution. Therefore, the addition of what the Minister sees as a futile gesture in any case——
Mr. Noonan: (Limerick East): No, it is very necessary.
Mr. O'Kennedy: : Those words, because of the lack of principle of construction do not extend the scope to pre-1937 legislation.
Mr. O'Kennedy: : It is a long time since Deputy Kelly practised in the courts so perhaps he will have the opportunity of testing some of his academic views before the Supreme Court.
Mr. Kelly: : I read the stuff it produces.
Mr. O'Kennedy: : Is the Minister saying that the Supreme Court judgment in Sheerin and Kennedy does not mean that the words he originally introduced would only apply to post-1937 legislation? I hold that it does and that the Minister's  attempt to correct it does not do so in any event. All this demonstrates the futility of pursuing the line that the Government have in relation to this question.
Mr. Noonan: (Limerick East): Deputy O'Kennedy's contribution proves that I was correct in the political judgment of adding the extra words because it was quite obvious from the attacks made on the wording I suggested at the close of Second Stage, that not alone would PLAC and various opponents of the amendment I suggested go along the lines that Deputy O'Kennedy has gone along, but many eminent people who inhabit the Opposition benches would make long argument all day long and we would discuss nothing else.
Mr. O'Kennedy: : Mine was very short.
Mr. Noonan: (Limerick East): My advice is that the original wording, if I may so call it, as I indicated at the end of Second Stage was totally adequate to fulfil the purpose that we intended to fulfil. So as not to be sidetracked along the lines that Deputy O'Kennedy has been sidetracking the House we decided to put in the extra words. The extra words should have taken that aspect of the debate out of the House completely, because what is there now meets the spurious arguments put forward and it meets every point that the Deputy has made.
Mr. O'Kennedy: : The Minister has replied with a very bland statement and said that his advice is that the original words he introduced apply to pre-1937 legislation. I quoted from the Supreme Court judgment in a very well-known case which clearly said the opposite. Is the Minister saying now that his advice is that the Supreme Court, unanimously in that case, were wrong in their interpretation? He and his Attorney General will find, if they go before the Supreme Court on the basis that they bind themselves by a unanimous decision already taken, that the court will hold that the terminology he has does not apply to the post- or pre-1937 Constitutions. It is not enough for the Minister to say in reply in the face  of that kind of evidence, “my advice is”, and then to imply that the question I raised is being raised purely for the sake of political hassle or something of that kind. It is not. Confining myself to the text of the Supreme Court judgment, if Deputy Kelly, who is not engaged to advise the Government, now comes to his aid——
Mr. O'Kennedy: : If, having consulted his advisers, the Minister would enlist the support of Deputy Kelly to demonstrate that the original words they proposed to the House include pre-1937 legislation, then I give way to the Minister, to Deputy Kelly, to Deputy Shatter or to anyone else who wishes to state that new principle in the face of a Supreme Court judgment. If one person in this House can demonstrate that I will give way to him, but it is not enough for the Minister to say, “I am advised that” and then to imply that the Opposition when questioning that advice are engaging in what someone called political football. I leave it to any one of them to demonstrate that.
Mr. Noonan: (Limerick East): I am sorry the Deputy had his speech prepared——
Mr. Kennedy: : I had not.
Mr. Noonan: (Limerick East): —before the amended wording came out. It was exactly to avoid what he is doing now that we put in these extra words. There is no doubt whatever, with the attacks made by the legal advisers to the pro-life movement and the attacks made by some of the Deputies opposite, that we would have a long and futile debate on this point. There is no need for it now because to the word “invalidate” which the Deputy is objecting to, has been added, “or to deprive of force or effect”.
Mr. O'Kennedy: : This Minister this morning is on record in this House as saying that the Attorney General advised him and the Government that the original  words without the addition of those words he is now proposing to add were adequate to apply to the 1937 Constitution or to pre-1937 legislation. That is why I worry about the constitutional advice he is getting. That is self-evidently wrong and could not be more wrong. Any judicial interpretation would have to hold that. The Minister is now saying that, despite the fact that it covers pre-1937 legislation, to avoid any hassle in this House he is going to bring in some extra words, “or to deprive of force or effect”. That would mean that the unreasonable Opposition here should be satisfied now.
Mr. Noonan: (Limerick East): Correct.
Mr. O'Kennedy: : They are not necessary, according to the Minister, but it is an unusual principle that he is introducing now just to keep us quiet. Keeping us quiet is not the issue here. There is a very strong probability on the general rule of construction of the justum generis, of the same type, that the words can be interpreted only as applying to the pre-1937 Constitution in addition to the original word “invalidate” because they are appended to it. I cannot be definite about it but I have regard to that rule of construction that is applied throughout the law.
Mr. Noonan: (Limerick East): I have no doubt that we could have eminent legal people on all sides of this House arguing this ad infinitum and nothing would be concluded. I have tried to take this argument out of the debate by adding the words and I think they should be accepted.
Mr. O'Kennedy: : This explains why the Minister wants to get away from having long Second Stage speeches and taking this aspect out of it. If what the Minister said here this morning in the early part of his speech is a record of fact as to the constitutional advice he is getting from the Attorney General and the Government are acting on that, then they have very bad advice indeed. I suggest that if these are words which the Government  propose — and they are the words of the Government, not of Fine Gael; if a Minister proposes here an amendment he proposes it on behalf of the Government — there is something very wrong.
Mr. O'Kennedy: : I have endeavoured to avoid the argument and all this kind of thing which is going on here. I am worried about the quality of the advice on this statement of the Minister this morning. I think the country will worry greatly if the words proposed here are accepted, despite the Minister's assurance which does not convince me, that he is satisfied in the face of legal authority. That will not assure anybody.
Mr. Noonan: (Limerick East): I have made the point three times.
Mr. O'Kennedy: : I want to hear Deputy Kelly on his satisfaction in relation to that Supreme Court judgment.
Mr. Kelly: : Maybe I can offer with the humility appropriate to someone who has heard the point that Deputy O'Kennedy raised only ten minutes ago and has not had a chance to look at it or even the Sheerin judgment from which he has quoted.
Mr. O'Kennedy: : I have a copy here if the Deputy wants it.
Mr. Kelly: : It is all right, I know what the judgment is about. If I recall correctly, the point about the judgment is that it disentangled various usages in regard to the constitutionality of legislation. Only Bills under the Article 26 procedure could be spoken of as repugnant. Acts passed before the present Oireachtas came into existence had to be spoken of as inconsistent with the existing Constitution and Acts subsequent to 1937 — I hope I have already got full marks from some of the people over there for this — are spoken of as being valid or invalid as the case may be, having regard to the provisions of the Constitution. The Minister's  original draft of his amendment contained the word “invalidate”. I have not had a chance to look it up but I believe that that word does not occur in the Constitution as distinct from the word “valid” in any context material to what Deputy O'Kennedy has been saying. Any judge standing on his heels and not on his head would hold that word adequately to cover all legislation whether of this Oireachtas, the last Oireachtas or the pre-1922 authority then passing laws for this country. I may be wrong in thinking so. If the Minister thinks so I will agree with him, but there is the other point of view that perhaps, if the Sheerin judgment is to be interpreted as pedantically as Deputy O'Kennedy suggests, this word might be held to apply only to post-1937 legislation and therefore not to insulate the 1861 Act which was passed by the former authorities and accordingly an Act to which some expression like “inconsistently” would be more appropriately applied.
The Minister has solved this — he does not think that this problem exists nor do I — to the satisfaction of those who doubt it by saying that we will look at the Article of the Constitution which carries over and keeps in force all the pre-1937 legislation, whether it be that of the old Oireachtas or of the British. That article speaks about such laws remaining in full force and effect unless inconsistent with the Constitution. That phrase which the Minister put in is specifically designed to insulate pre-1937 legislation. With all the other absurdities in this constitutional and political pantomime we are engaging in here, this is the bottom.
Mr. O'Kennedy: : I take it that——
Mr. De Rossa: : Is this a Committee Stage debate?
An Ceann Comhairle: : Yes. I am calling Deputy O'Kennedy first and I assume he will not be long.
Mr. O'Kennedy: : No. Deputy Kelly must look at the judgment and he will find in many places that the question of the validity of a law having regard to the  provisions of the Constitution can only refer to laws enacted by the Oireachtas. Wherever one talks about validity or invalidating one is talking about pre-1937——
Mr. Kelly: : That is what the Deputy is saying because he is interpreting it pedantically. There are many pedants——
Mr. O'Kennedy: : Is that so? Maybe the Supreme Court——
Mr. Kelly: : It is to satisfy the pedants that the Minister has put in that phrase.
Mr. O'Kennedy: : That is an unusual argument for a constitutional lawyer. If the Deputy wants to get involved in an argument about pedants he may do so, but I do not think that is a legal approach.
Mr. Kelly: : The judges of the High and Supreme Courts repeatedly get their terminology in this area mixed up even to the present day.
Mr. O'Kennedy: : Now they know it.
Mr. Kelly: : They have their ears to the ground——
An Ceann Comhairle: : Deputy O'Kennedy should make his contribution.
Mr. O'Kennedy: : We are now being informed by a Deputy of this House, who has academic constitutional experience that the judges in the Supreme and High Courts get their terminology mixed up. That may be, but unfortunately they are part of the judicial arm of the Constitution.
Mr. Kelly: : They are not pedants.
Mr. O'Kennedy: : I am sure they will be very encouraged to know that Deputy Kelly can now proclaim in this House, even if he will not go and say it to them directly, that they are getting their terminology mixed up. They will learn to correct——
Mr. Kelly: : It is a small thing, but in the substance of what they do I am on their side and they can be trusted to uphold the right to life.
An Ceann Comhairle: : Deputy Kelly, there is only a short time left and I am trying to let as many people speak as I can. I propose calling Deputy De Rossa after Deputy O'Kennedy.
Mr. O'Kennedy: : I will not be very much longer. I want to analyse the effectiveness and appropriateness of these words.
An Ceann Comhairle: : The Deputy should not be provocative.
Mr. O'Kennedy: : If that is being provocative I regret it but——
An Ceann Comhairle: : By “provocative” I meant that the Deputy should not address questions to Deputy Kelly or anybody else.
Mr. O'Kennedy: : If addressing Deputy Kelly is provocation I will discipline myself.
Mr. Kelly: : The Deputy would be giving grave offence to Mr. de Valera if he were using the expression as a term of opprobrium.
Mr. O'Kennedy: : I hear a continuing murmur from the other benches.
An Ceann Comhairle: : Turn a deaf ear.
Mr. O'Kennedy: : I am satisfied that even the additional words will not protect the pre-1937 Constitution. What is being advised by the Government is very bad.
The formula used here is also used in Articles 29, 37 and 40 of the Constitution —“nothing in this Constitution shall be invoked to invalidate provisions of the law... ”. In one case it applies to our membership of the European Economic Community — nothing in the Constitution would invalidate laws we pass to give  effect to our membership of the Community. That could not have been contemplated at the time of the enactment of the 1937 Constitution. It is also mentioned in the section dealing with emergency legislation. In that case we suspend the Constitution and say that nothing in this Constitution would operate to invalidate acts done at a particular time. Those are the two exceptions where we suspend the Constitution.
The Government now propose that we suspend the Constitution for a particular purpose which is neither necessary nor appropriate —“nothing in this Constitution shall apply to invalidate .. .”. To any constitutional lawyer that kind of formula is unwelcome. It could be said to be an insult to the Constitution. There is no need to insert the clause “nothing in the Constitution shall apply” that——
Mr. Kelly: : Is this Fianna Fáil putting on their protocol——
Mr. O'Kennedy: : There will be enough political argument of one form or another——
Mr. Kelly: : Every second Act uses a similar formula.
Mr. O'Kennedy: : May I refer to one or two constitutional points? If Deputy Kelly does not consider these points appropriate to this debate I am sorry, but it will probably take me two minutes to make this point, in contrast to the Minister's speech this morning and I hope it does not hurt his ears too much. I am simply saying the formula is inappropriate to a constitutional amendment and I have given the two precedents——
An Ceann Comhairle: : Order, please.
Mr. O'Kennedy: : We talk about a law which prohibits abortion but I want to ask the Minister precisely what he means by that. Is it a law which prohibits abortion in all circumstances or in some circumstances? In his proposal the Minister  uses this phrase: “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.” Does that apply to a law that prohibits abortion in all circumstances or in some circumstances? Can it be said to be a law which permits abortion in some cases but prohibits it in others? I do not know exactly what that phrase means and this is what a court interpreting this legislation would have to look to. How general or extensive is it? As has been asked many times, what is it that prohibits abortion? As the Minister knows, abortion is not legally defined and has not been legally defined, although it is legally and constitutionally being used.
Mr. Kelly: : Neither has the word “life” been legally defined.
Mr. O'Kennedy: : It is not contained in the relevant provisions of the Offences Against the Person Act, 1861, which at the moment prohibits the act called abortion. The word is not used in that Act. Of course it is defined in the Oxford English Dictionary which is often looked at by lawyers when they try to interpret the normal meaning of words. There it is defined as “a miscarriage” or “the procurement of a miscarriage”. It is also defined as “a dwarf or deformed person”. They are the known definitions. A spontaneous miscarriage by a pregnant woman is frequently if not usually referred to by the medical profession as “an abortion”, or “a spontaneous abortion”. I want to know from the Minister what is he suggesting to be the meaning of “abortion”? Does it apply to a law that prohibits abortion in all cases or in some cases, and if in some cases what kind of cases does it extend to? What does “it” refer to in the Minister's wording of Part II of his amendment to the Schedule, which states:
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.
Does it refer to the provision in a law or  the full law itself? The Minister is introducing something very fundamental and it is important that the parliamentary draftsman or the Attorney General would be able to tell us what exactly is the legal definition. I think the House should be given some response by the Minister.
The Tánaiste: : I expect there will be many replies and much discussion on this topic in the next 20 years. I will be brief because I do not share with many Members the concern and the serious views which they seem to share about the possibility of abortion being legalised here either by the House, which is a bastion of conservatism, or by a Supreme Court as at present constituted. When the subject of an amendment of the Constitution was first raised in the course of the last election campaign, I stated publicly that I had reservations about the legal implications of the Bill. I believe those reservations have been justified ——
Mr. O'Kennedy: : Could we have copies of the speech?
The Tánaiste: : I am working from notes. I will be reading some extracts from the Dáil Official Report. Deputy Woods is speaking about lack of definitions. During the election campaign I said I had many reservations about the implications of the amendment as proposed by the Fianna Fáil Government. I have felt since that those reservations were justified. The Attorney General, in offering his opinion on the interpretation of some of the words in the Fianna Fáil proposed amendment, has vindicated my opinion. I accept his legal opinion, which points out the difficulties of interpretation by the Supreme Court of certain words and phrases, with due regard to the equal right to life of the mother and the unborn. It is clear that the word “unborn” is likely to be interpreted by the Supreme Court as the moment at which the human ovum is penetrated by a sperm — the moment when human life commences. In the course of the Second Stage debate on this topic Deputy Woods made the point — and I find it ironic now  that Deputy O'Kennedy should be questioning the Minister in relation to the lack of definition ——
Dr. Woods: : Surely he is entitled to do that on Committee Stage.
The Tánaiste: : The Deputy is recorded in the Official Report for 9 February last at column 1386 in the following manner:
Despite what would undoubtedly have been the wish of the promoters of this amendment and the majority church in this island, there is no attempt in the wording of the amendment to define the moment at which the life of the unborn begins. The amendment does not attempt to make this definition. Most, of course, would argue that it begins at the time of conception, but this is a matter of theological and scientific argument and in preparing the wording of the amendment we felt it was not appropriate to the Constitution to have such definitions.
I do not understand, if one side do not think it appropriate to have definitions, how they can then turn around to the other side and ask them for definitions of the very words they were not prepared to define themselves.
The whole issue here is lack of definition in the 1861 Act which we should be updating and not attempting to tackle our Constitution in this haphazard manner. If this interpretation should be placed on the word “unborn” then I believe some forms of contraception which are now acceptable would be declared illegal and the phrase “with due regard to the equal right to life of the mother” could mean that various established medical practices which are now ethically acceptable could be declared illegal. With these fundamental legal objections to the Fianna Fáil wording, I believe there is also the possibility that the Supreme Court could rule on the Fianna Fáil wording in such a way as to permit abortion.
Therefore, as far as I am concerned it can be clearly seen that there are major defects in the Fianna Fáil wording which, if passed, the people of the country would be asked to vote on, knowing that the  Supreme Court almost certainly will have to rule at a later stage and which ruling would have serious social implications. It is both inappropriate and unfortunate that we the legislators would allow something to be passed here this evening of which we are not sure of the definition and the scope or the extent of the effects it will have on Irish life in the immediate and long term future.
Since the wording was published, I and many others have become increasingly disturbed by the implications which it has for religious harmony in this part of the island. It has become clear that the Protestant Churches here regard the passing ——
Dr. Woods: : Are we at variance now with the Minister?
Mr. Keating: : Or are we playing politics?
Dr. Woods: : These are two members of the same Government.
The Tánaiste: : I can make my position perfectly clear as I did last November. My position has not changed once, irrespective of political implications. I am entitled to express my opinion.
Dr. Woods: : The Minister for Justice has told us it is not sectarian and now this Minister is trying to suggest it is sectarian.
The Tánaiste: : I am entitled to express my opinion. The Protestant Churches see the passing of the Fianna Fáil amendment as including in our Constitution a definition of “life” which reflects the theological position of the Catholic Church. Regardless of the validity of this view, we should give due consideration to having included in the Constitution a section which is seen by a substantial minority as objectionable. I do not believe that due consideration has been given to this. It is my opinion that we should be looking to the new Forum to develop a Constitution which in the final analysis could unify the people of the country. The inclusion in the Constitution of the Fianna Fáil  amendment could not in any way contribute to Irish unity but could seriously damage the trust which we seek from Northern Unionists. In the past, Fianna Fáil always claimed, and they do so now, to be the Republican Party. Yet they appear to be totally oblivious to the objections to their wording raised by the Protestant Churches. I would be interested to hear from them how they see their amendment as uniting Catholic, Protestant and Dissenter under the common name of Irishmen.
Dr. Woods: : Does the Minister want to hear it now?
The Tánaiste: : I will wait right through the debate. I will give the Deputy the right to reply any time.
Dr. Woods: : The Minister for Justice will be replying.
The Tánaiste: : The Minister for Justice does not have to defend the Fianna Fáil wording.
Mr. Molloy: : The Government introduced this Bill, not Fianna Fáil.
An Leas-Cheann Comhairle: : The Minister, without interruption.
The Tánaiste: : Another disturbing aspect of the pro-life campaign has been its failure to address itself to something on which everyone in this House would agree, that is, that the problem we are talking about is abortion. The passing of this amendment will do nothing to reduce the numbers of Irish girls having abortions each year. The vast majority of girls who have abortions do so not because they want to, but because of social and economic pressures which they are unable to withstand.
As a society we must adopt a much more caring attitude to this problem. We must abolish the status of illegitimacy and remove the stigma which attaches to it. We should welcome every child into our society and help the mother feel pride rather than shame. We should make economic provisions for women so that there  would be no question of abortion for economic reasons. These areas are fundamental to a reduction in the number of abortions. If the time and energy spent on this amendment had been directed at the root causes of abortion, namely, the economic and social conditions for pregnant women, our society would be the better for it today. We must create a caring society in which the quality of life is understood to be important. I do not see how this amendment in any way could further that cause.
I have stated that for the reasons given I am opposed to the Fianna Fáil amendment as drafted. Nothing has been said in the course of this debate, either on Second Stage or today, to convince me that there is an overwhelming desire or necessity for such an amendment, particularly in view of the obiter dicta in the Norris judgment last week by two Supreme Court judges, which clearly showed that there is implicit protection for the unborn in our Constitution.
I am also extremely concerned about the statement made by the Director of Public Prosecutions that he could find it more difficult to prosecute persons carrying out abortions if the Fianna Fáil amendment before us were passed and enacted by the people.
Dr. Woods: : Through the Chair, the Director of Public Prosecutions has been quoted repeatedly. There is a danger of this office being brought into disrepute. We have to depend on the office of the DPP being an independent office. I would ask the Minister not to do what his Taoiseach did and drag an independent civil servant into a debate of this sort, especially since the points have not been specified by the Director of Public Prosecutions.
The Tánaiste: : With respect, the points have been made publicly by the Director of Public Prosecutions and note should have been taken of the points made in a matter as serious as a possible inclusion in the Constitution.
Dr. Woods: : He did not specify the points. I will read the press release.
The Tánaiste: : The point has been made. The Deputy can clarify it for himself if he likes.
Dr. Woods: : It is a very serious matter to bring the Director of Public Prosecutions into the political arena.
The Tánaiste: : My remarks could hardly be taken as bringing him into public disrepute. The man has given his opinion that the Fianna Fáil wording would add difficulties in prosecutions against abortion. Either we take the advice given by an independent officer, or do otherwise.
Dr. Woods: : He is not a constitutional lawyer. It is his job to apply the law.
An Leas-Cheann Comhairle: : The Minister should be allowed to continue without interruption.
Mr. Shatter: : On a point of order, I should like to draw it to the attention of Deputy Woods that the DPP is an eminent lawyer.
Dr. Woods: : The DPP is an independent civil servant. I will quote from the Act if the Deputy likes. His office should not be brought into disrepute.
An Leas-Cheann Comhairle: : The Minister to continue without interruption.
The Tánaiste: : There are serious implications in this. Many times in the past I have heard my colleagues across the floor of the House making pleas to the Labour Party to do certain things, more often when we were in Government than when we were in Opposition. They said they wanted to assist the Labour Party and would appreciate it if we took certain courses of action. There must be some people amongst the 75 Deputies on the Fianna Fáil benches who have minds of their own and who can think about the possible wording of the amendment to go before the people. I do not accept that the Whip should be imposed on them on this issue because reservations have been expressed in public. This evening their  voting pattern should reflect those reservations rather than their obedience to the party Whip or party unity.
The Fianna Fáil amendment will make bad law. It will cause serious problems in future. I regret that neither of the wordings before us has been properly defined. We should have the definitions in this House and not in the Supreme Court which, likewise, has been dragged into disrepute in the course of this debate. I consider that totally unnecessary. If we have not got the ability, the authority or the guts to define the amendment in this House, we should not be going before the people.
Mr. De Rossa: : The exchanges between Deputy O'Kennedy and Deputy Kelly highlight the quagmire we will enter in the legal sense if the Fianna Fáil wording or the Fine Gael wording goes through. I should like to draw attention to a number of legal points.
Mr. Lyons: : On a point of order, it should be shown on the record of the House that the wording is not Fine Gael wording but Government wording.
Mr. Shatter: : That is not a point of order.
Mr. De Rossa: : A number of Deputies are very concerned about terminology. It is not widely enough recognised, possibly due to the hysterical and rushed way in which the campaign for this amendment has been conducted — and the rushed way in which debate today has been conducted; we opposed the guillotine this morning and got no support for our opposition to it — that the wording of the Fianna Fáil amendment could well spell the end of the only safe methods of contraception now available to thousands of Irish women.
This point was the primary concern of the doctors who held a press conference on 24 January last to voice their opposition to the amendment. It is important to note who these doctors are. In many cases they are leading specialists in their fields, men and women we entrust with  the health and future well-being of our people. Can we afford to ignore their fears?
No doubt Deputies on various sides of the House can produce other eminent specialists who will offer alternative views. The facts are that there are many differing views on this issue. For that reason it is very important that the issue should be discussed and it was for that reason only that we put down the amendments to the Fianna Fáil wording. We wanted to get a reasonable, adult, sane debate on the issue, which we have not had so far today, apart from the contribution by Deputy Mac Giolla and Deputy Shatter who attempted to approach the actual issues which will arise if an amendment is passed here today.
This amendment could dramatically affect not only the health but in some cases the lives of women. Professor Dermot Hourihane, Dean of the School of Medicine at Trinity College, Dublin, had this to say last January:
We have been advised that a number of methods of contraception at present commonly prescribed by doctors could become illegal if the amendment once passed receives an interpretation defining the term “unborn” as existing from the moment of fertilisation. In some cases these are the only really safe methods available to our patients, particularly to older women.
Among other things Professor Hourihane was referring to the intra-uterine device, one of the few methods of birth control available to women who smoke, who are for various reasons unsuited to the pill, or who have reached an age at which the use of the pill becomes increasingly dangerous.
One theory is that its presence in the uterus creates a condition which increases the number of white blood cells which in turn destroys spermatoza, in which case the IUD could not be seen as interfering with the fertilised ovum. Other theories, however, are that the presence of the IUD inhibits implantation of the fertilised ovum in the womb, in which case the IUD could be interpreted as an abortifacient and, thus,  become illegal if the amendment is so interpreted. This is what we are leaving ourselves open to. We have already seen a display of the differences that arise between lawyers whom we assume have studied the cases involved and have come to different conclusions. If this method of contraception were to be banned, it would put hundreds of thousands of women in jeopardy of further pregnancies, in danger of bearing children they do not want in circumstances seriously threatening to their own lives and health. More than 2,500 IUDs were inserted in 1981.
What is of particular concern to The Workers' Party is that in practice the IUD is overwhelmingly used by working-class women. Last year Dr. Helen Watson conducted the first comprehensive study of the use of the IUD in Ireland. She found that 34.7 per cent of IUD users were wives of manual workers; 27 per cent were wives of unemployed men and that 35.4 per cent of IUD users were also medical card holders.
Dr. Watson also found that more IUD users had four to six children than women who used other forms of contraception, and that a far higher proportion were in the 35 to 44 year age group. She concluded that “a significantly higher proportion of women using IUDs have large families; are entitled to medical card treatment; have husbands in the lower occupational groupings; have husbands who are unemployed and come from the lowest socio-economic parts of Dublin.”
Dr. Mary Henry, Consultant Physician to the Rotunda Thrombo-Embolic Unit, has found that the number of deaths due to thrombo-embolism have fallen dramatically in women over 35 years with many children. This fall is due in the main to the increased use of the IUD or coil. Yet, we are talking about passing an amendment that may make illegal the use of this device.
If the fears doctors have expressed with regard to the interpretation of the amendment are realised, the women this amendment threatens to most affect are precisely those women already most over-burdened with the injustices of this society — large families, low income or  no income at all but the dole, poor housing and high prices. Why is it that the advocates of this amendment have carefully concealed this fact, have neglected to give publicity to the fact that the 40-year old working-class wife with half-a-dozen children, the woman struggling to make ends meet and rear her family responsibly in extreme hardship, is very probably going to be the first victim of this amendment?
There is another form of contraception quite likely to be banned should this amendment be interpreted as Professor Hourihane described, and that is the Progesterone Only Pill. The consequences of banning this will have serious medical effects for the great numbers of women, who because of their age, have too high a cardiovascular risk to take the combined pill, women who have vascular heart disease and cannot take the combined pill and women who are breast-feeding. This pill is also the only pill suited to diabetic women. As a medical development the Progesterone Only Pill represents a significant advance and the numbers of women taking this form of treatment have increased considerably in recent years.
Are we now to become the only country in the modern world today to deny women the benefits of medical research because a small minority insist that one area of philosophical debate be defined in their terms, and in their terms only, and imposed on the rest of the nation? The medical facts appear to be that all women who use the pill may be put at a disadvantage by this amendment. Since 1980 a new form of pill, the “triphasic” pill has been on the market with a very low dose of oestrogen.
Many of these pills may not inhibit ovulation as the older versions of the pill do but may also act by preventing implantation of a fertilised ovum. These new pills are much safer for older women and for younger women alike because of the very low doses of hormones used are less likely to produce changes in the blood associated with clotting. If low-dose pills are to become illegal, we will be the only country in the world to force our women  to use high-dose oral contraceptives with all their attendant medical risks.
Finally, we must look at the question of post-coital contraception. In recent years the availability of safe and effective “morning after” treatment to prevent pregnancy has become a reality. The woman who is at risk of pregnancy from unprotected intercourse — whether the event was an unplanned encounter, whether she is a victim of accident or misplaced diaphragm or whether she is the tragic victim of rape — can now avail of a simple and effective means of protecting herself from an unwanted pregnancy. The treatment consists of two doses of oral contraceptive tablets taken within three days of the event. This acts by preventing the implantation of the fertilised ovum in the womb and there is no question but that its availability has already prevented hundreds of thousands of unplanned, unwanted pregnancies.
One of the most important aspects of the “morning after” pill is that it may be the most effective means yet of reducing the abortion figures. In the University of British Columbia, where post-coital contraception was made available seven days a week and widely publicised, the rate of abortion among college students dropped by half. Many continental doctors are hopeful that with enough education and facilities similar improvements could be made on abortion statistics throughout the world. Yet, ironically, here in Ireland we are actually considering an amendment to the Constitution that would outlaw post-coital contraception and do nothing practical to help reduce the abortion rates in this country.
I appeal to Deputies on the Fianna Fáil benches who know this amendment is wrong to refuse to support it.
Dr. McCarthy: : The Minister for Health speaking in this House this morning said that the public debate that has taken place has proven to be divisive to an extent unprecedented in recent times. He said it has generated confusion and bitterness that do not provide a stable basis for decisions on matters as important as changing our Constitution. Further  in his speech he mentioned what Deputy De Rossa has been speaking about, namely, the possibility that contraception as it is practised at present would not be legal if our amendment were introduced. I am glad Deputy De Rossa has taken such an intensive and authoritative course on the types of contraception that seem to be available. Obviously he has carried out a considerable amount of reading on the matter.
I wish to state that what the Minister and Deputy De Rossa said, that contraception as it is practised might not be allowable, is totally untrue. I wish to quote from the Irish Independent of 4 March 1983. The article written by Kevin Moore states:
The Irish Medical Association has declared that the Fianna Fáil wording of the anti-abortion Amendment to the Constitution does not conflict with medical ethics.
Mr. De Rossa: : The IMA do not make the laws.
Dr. McCarthy: : I will continue with the quotation:
This is the view of the Association's Ethical Committee which has been endorsed by the IMA Central Council. It runs counter to the reservations expressed by the present Attorney General, Mr. Peter Sutherland, SC.
The IMA Central Council wanted guidance on whether there might be conflict between the right to life of the mother and the right to life of the unborn and on whether certain contraceptive methods might be banned.
A member of the Central Council said yesterday that the Ethical Committee found that there would be no departure from existing medical practice.
The Attorney General, Mr. Sutherland, has suggested that certain contraceptives and family planning techniques might be outlawed if the Fianna Fáil wording were adopted.
However the IMA's Ethical Committee found that the use of contraceptives would not be affected and this  interpretation was backed by the meaning given to the term “contraceptive” by the Supreme Court in the Magee case.
I suggest that the Minister for Health and Deputy De Rossa have been attempting to confuse the public more by what they have been saying. We can see clearly who has been creating the confusion.
The Fianna Fáil form of words is clear and unambiguous and would copperfasten within our Constitution the right to life of the unborn from the time of fertilisation and would also copperfasten the equal right to life of the mother and the unborn child. Amazingly, prior to the election of November 1982, Fine Gael clearly and unequivocally accepted this form of wording. Unfortunately, now, some months later, after their election success, the present Taoiseach is prepared to renege on his promises and his commitment.
Mr. Keating: : On a point of order, would it be possible to ask Deputy McCarthy and any other remaining speaker or speakers, if possible, to be reasonably brief? There are a number of people who would like to contribute.
Mr. Molloy: : Tell Deputy Barry Desmond that.
Mr. Wilson: : We were supposed to listen to a speech for the second time from other people.
Dr. McCarthy: : As I said, the present Taoiseach is now prepared to renege on his promises and his commitment, to vacillate and equivocate, to twist and turn in every direction, to appease the pro-abortionists amongst the public.
Deputies: : Rubbish.
Dr. McCarthy: : In particular to appease the pro-abortionists——
Dr. McCarthy: : ——within the Young Fine Gael.
Deputies: : Hear, hear.
Mr. Kelly: : Withdraw that remark.
Mr. Molony: : The Deputy should be ashamed of himself.
Dr. McCarthy: : The Taoiseach has allowed himself to be led——
Mr. Molony: : It is a reflection on the Deputy that he is acting like this in this House.
Dr. McCarthy: : ——into supporting and promoting a form of words which is weak and indecisive——
Mr. Skelly: : The Deputy did the same himself.
Dr. McCarthy: : ——with the very clear and definite implication that the Taoiseach is soft on abortion. He has shown himself——
An Leas-Cheann Comhairle: : Order in the House, please, Deputies. Order.
Mr. Kelly: : I never thought that I would hear a speech like that.
Dr. McCarthy: : The Taoiseach has shown himself clearly to be weak and indecisive.
Mr. Keating: : On a point of order——
Dr. McCarthy: : He is now clearly recognised by many people as being——
An Leas-Cheann Comhairle: : Deputy Keating, on a point of order.
Mr. Kelly: : And it was this Deputy's Hippocratic Oath that we were hearing about a couple of hours ago.
An Leas-Cheann Comhairle: : Deputy Keating, on a point of order please.
Mr. Kelly: : The Deputy should withdraw that insult.
Mr. Keating: : Is it in order for a Deputy in this House to tell lies about another Member and is it in order for the Chair to allow the calumny to go unchecked?
An Leas-Cheann Comhairle: : Deputy McCarthy will have to rephrase what he has stated.
Mr. Wilson: : There is a definite conspiracy to stop Deputy McCarthy from speaking.
Dr. McCarthy: : I made one remark.
Mr. Keating: : The Deputy is telling lies.
Mr. Leyden: : The Deputy has a nerve.
Mr. Wilson: : It is a conspiracy.
Mr. Kelly: : What about his Hippocratic Oath?
An Leas-Cheann Comhairle: : I would remind Deputy McCarthy that he is not allowed to make a political charge in this House. Unless there is some order in this House——
Mr. Keating: : Is there no way of getting the Deputy to withdraw his lies?
An Leas-Cheann Comhairle: : I am getting very little help from the House.
Mr. Molony: : The Deputy should withdraw that remark.
Mr. Harte: : It is a lie.
Dr. McCarthy: : The present Taoiseach changed his mind for some reason. Maybe it is not because of the pro-abortionists in Young Fine Gael.
Mr. Keating: : Withdraw that allegation again. That is unworthy of the Deputy.
Mr. Molony: : It is embarrassing to sit and listen to this rubbish.
An Leas-Cheann Comhairle: : Personal charges are not in order, I would remind the Deputy. Political charges are.
Mr. Wilson: : There is a definite conspiracy to stop Deputy McCarthy speaking.
Mr. Skelly: : To make the Deputies stop saying that kind of rubbish, the Deputy is damn right there is.
An Leas-Cheann Comhairle: : Unless there is order in this House——
Mr. Harte: : On a point of order it is the job of the Chair to see that these lies do not go unchallenged.
An Leas-Cheann Comhairle: : That is my job and I am trying to carry it out, but I am getting very little help from either side. Deputy Harte, on a point of order.
Mr. Harte: : On a point of order, is it in order for a Deputy to come into this House and put up an argument which is totally inconsistent with what he is saying in the corridors of this House? That is what Deputy McCarthy is doing. He says differently when he is talking privately.
An Leas-Cheann Comhairle: : Please, Deputies.
Dr. McCarthy: : It is not my fault if the Taoiseach has changed his mind. It is not my fault if he has shown himself ——
An Leas-Cheann Comhairle: : Unless I can have order ——
Mr. Keating: : The Deputy is a liar, he is a liar. He is telling lies.
Dr. McCarthy: : Withdraw that remark.
An Leas-Cheann Comhairle: : Deputies, please. It is now five minutes past six and the Minister has to come in at 6.15 p.m. The House is in complete and utter disorder. I would ask all Deputies to allow Deputy McCarthy to conclude and allow the Minister to come in.
Mr. Molloy: : Deputy McCarthy has been accused of telling lies.
An Leas-Cheann Comhairle: : I am sure that the people in the gallery are anything but impressed by the conduct in this House tonight.
Mr. Molloy: : Deputy Keating should withdraw his remark.
Mr. Wilson: : It is understandable that Fine Gael should be a little nervous.
An Leas-Cheann Comhairle: : I would ask all the Deputies to please — Deputy McCarthy.
Dr. McCarthy: : I have never been accused of being a liar before.
Mr. Kelly: : He is not acting in accordance with his Hippocratic Oath.
Dr. McCarthy: : The Taoiseach has shown himself to be weakening.
An Leas-Cheann Comhairle: : Unless there is order, I will call on the Minister to conclude. The debate has been reasonably orderly during the day, but there is chaos now.
Dr. McCarthy: : The Chair does not want me to finish.
An Leas-Cheann Comhairle: : I would like the Deputy to finish.
Dr. McCarthy: : The Chair should respect my rights.
An Leas-Cheann Comhairle: : I respect  the rights of the Deputy and everybody else.
Mr. Harte: : He is not going to withdraw his allegation.
An Leas-Cheann Comhairle: : Whatever about what the Deputy says in the corridors of power and in here, the Chair has no control over what Deputy McCarthy says outside.
Mr. Keating: : He is not entitled to tell lies.
Dr. McCarthy: : I should like Deputy Keating to withdraw the comment that I am a liar.
Deputies: : Hear, hear.
Dr. McCarthy: : It was quite inappropriate.
Mr. Keating: : If the Deputy will withdraw his comments, I will withdraw mine. I will not withdraw mine until the Deputy does.
Dr. McCarthy: : I did not call anybody a liar.
Mr. Skelly: : Will the Deputy withdraw his slanderous allegations?
Mr. Wilson: : Chair, Chair.
An Leas-Cheann Comhairle: : Deputy Skelly, please.
Dr. McCarthy: : I said that the present Taoiseach has shown himself to be weak and indecisive and is now recognised as this by many people.
Mr. Harte: : He tells the truth.
Dr. McCarthy: : This is far removed from the public portrayal of him, from the exposing of him by Fine Gael prior to the election.
Mr. Skelly: : The Deputy says one thing  in one place and another in another place.
Dr. McCarthy: : He is supposed to be holier than holy and more pious that Pius, the new saviour of the nation of Ireland.
Mr. Skelly: : Hear, hear.
Dr. McCarthy: : The man who once in this House mentioned the phrase “flawed characters” most certainly at this stage must be cringing in his embarrassment at his own public gymnastics.
Mr. Harte: : He does not tell lies.
Dr. McCarthy: : Fine Gael, not all of them, clearly Labour, not all of them——
Mr. Harte: : The Deputy should keep quiet. He says one thing in one place and another in another, one thing in public and another in private.
Dr. McCarthy: : Clearly Fine Gael, but not all of them, the Labour Party, but not all of them and the Workers' Party are the guilty ones, the cause of this confusion.
An Leas-Cheann Comhairle: : Deputy Harte, please. I am going to call for the Ceann Comhairle. The House is completely out of order.
Dr. McCarthy: : Again this morning, the Minister for Health tried to add to the confusion by suggesting that pregnant mothers could not be treated for certain specific medical conditions if our form of amendment were introduced. That is not so. I am disappointed that the Minister for Health did not make himself aware of the facts in relation to medical ethics concerning the treatment of pregnant women who have particular conditions. An ectopic tubal pregnancy is a medical emergency which needs an acute surgical operation to save the life of the mother. An ectopic tubal pregnancy cannot survive. There is no question of a mother  with such a pregnancy being allowed to die if the amendment with our form of wording is introduced, any more than there is any danger of any pregnant woman with any condition, whether it be leukaemia, or cancer of the womb, being left untreated because she is pregnant.
Mr. Keating: : Who told the Deputy?
Dr. McCarthy: : The medical profession — and I am proud to be one of them — have a form of standards and work on the principle of the double effect. Doctors, the medical profession — and I am proud to be one of them — work on the principle of the double effect. We have always treated acute and all medical contingencies in relation to pregnant women——
Mr. Mac Giolla: : It will be out of the doctors' hands if this is passed.
Dr. McCarthy: : I can assure the House that an abnormal pregnancy, if it is in the tube, will cause a medical crisis which will need to be, and will be, treated if our form of amendment is introduced. To suggest that this would not happen, that pregnant women with particular conditions would be neglected demonstrates a lack of medical knowledge on the part of the Minister and a lack of understanding of basic medical ethics——
An Leas-Cheann Comhairle: : Order.
Dr. McCarthy: : It is just a red herring to confuse and worry the women of Ireland more.
Deputies: : Hear, hear.
Dr. McCarthy: : Let me assure the women of Ireland, as a medical doctor, just as much as a politician, that they will not be neglected in any way if our amendment is passed, as I have no doubt it will be. I can assure the House that the statement by the Professors of Obstetrics and Gynaecology to which Deputy O'Hanlon  referred earlier, the Professors of Obstetrics——
An Ceann Comhairle: : Might I intervene for a second? I would appeal to Deputies not to forget that this is a constitutional amendment debate, that it is a serious matter, that there is very little time left. I appeal for an orderly conclusion to this debate.
Deputies: : Hear, hear.
Mr. Barrett: (Dún Laoghaire): On a point of order, if we are going to have a reasonable debate, surely, as adults, we can debate without accusing people of being abortionists when they are not and deal with the matter in an adult fashion.
Deputies: : Hear, hear.
An Ceann Comhairle: : We will forget about what happened and we will start from here. I was not——
Mr. Carey: : No, that is a terrible thing.
Dr. McCarthy: : Surely the statement of the Professors of Obstetrics and Gynaecology to which Deputy O'Hanlon adverted earlier, the Professor at Trinity College, Dublin, the Professor at University College, Dublin, the Professor at University College, Cork and the Professor at University College, Galway cannot all be wrong because, if they are——
Mr. Harte: : That is what the Deputy is saying privately.
Dr. McCarthy: : If those professors are wrong, as the Deputy is suggesting, in their statement dated 14 April 1983, then the medical students of Ireland are being very badly educated medically. Either they know what they are talking about or somebody like Deputy Harte is an authority.
Mr. Harte: : No, I am just saying that what Deputy McCarthy is saying privately is different from what he is saying publicly.
An Ceann Comhairle: : Order, please.
Dr. McCarthy: : With what has happened, with the confusion that has been created by some Members on the far side of the House — not all, some of them — the Taoiseach and the Minister for Health stand clearly indicted for attempting to create this unnecessary worry amongst the women of this country and in particular any woman who may become pregnant in the future. I would exhort the decent, honest people on all sides of the House — and I do not have to worry about this side of the House, but there are very decent people over there — to support our amendment because that is the only one which will ensure that abortion can never take place here.
Minister for Justice (Mr. Noonan: , Limerick East): I thank the Deputies who contributed to this debate here today. I am sorry that, to a large extent, it seemed to be a re-run of the Second Stage debate rather than Committee Stage. In particular I thank Deputy O'Kennedy because he made an attempt to render it a Committee Stage debate. He raised three points at the end which were not answered and I should like to answer them. He asked if the text I am proposing gives constitutional protection. Only where the provision prohibits all abortions, not for example under section 58 of the 1861 Act which appears to permit some. I think that is the point he was making. The advice I had from the Attorney General was that he saw no reason to give the text this narrow meaning.
A second point Deputy O'Kennedy raised was on the meaning of the word “abortion” in the context of procured or spontaneous abortion. The word “prohibit” would quite clearly suggest here that what we are talking about is procured abortion because obviously one could not prohibit spontaneous abortion. Deputy O'Kennedy asked also what does the word “it” in the English text refer back to, was it to a law or a provision of the law? If he looks at the Irish version of the text he will see that there the  translation of “it” is “si” and it quite obviously refers back to “foráil” in that context rather than to the law itself. If the Deputy looks at the Irish version it is obvious it refers to a provision rather than to the law itself.
Deputy Woods made the major contribution from the Opposition side. I posed some questions when I was introducing the wording this morning. Since the amendment I am proposing as Minister for Justice substitutes for wording in the Bill I think that has put Deputy Woods in the position in which in effect he is sponsoring the original wording. I asked him some questions about the original wording and I am sorry he did not clarify them. Deputy Woods is now Opposition spokesman on Justice. But, I understand, when the wording was published, he was Minister for Health and the responsibility for introducing this Bill in the previous administration lay with the Minister for Health and the Department of Health, not with the Department of Justice. I am surprised that, on his memory of events, if he did not have the documentation available, he would not have been able to carry out an analysis and defence of the wording in the original Bill. He failed to do that and I wonder why.
Dr. Woods: : I should like to refute that. I do not agree with that at all and if the Minister reads the debate he will find those points are made.
Mr. Noonan: (Limerick East): There is nothing available to me, in the documentation that came from the Department of Health, to show that any analysis of the wording proposed was done. I wonder was an analysis done in the Department of Health. If there was, why is it not on file there? If it is not on file there why is Deputy Woods not able to inform us of that analysis here in the House today?
Dr. Woods: : The Minister is misleading the House.
Mr. Noonan: (Limerick East): Why could he not answer the questions I  raised? As far as I can gather, in general, Deputy Woods has taken the line, in much the same words on different occasions, that there is no problem about the existing wording. He wrote about it recently in The Cork Examiner of 20 April 1983 and something similar appears in today's newspapers. The opening part of his argument is that none of the personal rights of the citizen is absolute or unlimited and that their exercise may be regulated by the State. He goes on to say that the original wording does not create an absolute or unlimited guarantee for the life of the unborn but specifically acknowledges the equal right to life of the mother. The laws of the State, he says, may therefore provide for the exercise of that right when it is threatened and if a mother's 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. That is the line of argument Deputy Woods followed today in the early part of his contribution.
I should like to look at that argument. The first point made is that the State has the right to regulate the exercise of personal rights. I think a question could be raised immediately as to how the word “exercise” could be applied at all to the right to life—one would not normally think of the process of living as the exercise of a right to life. But, leaving that aside, it is quite clear that if one speaks about the State regulating the exercise of a right one is talking about some form of restriction on its exercise.
I come now to the next part of the argument where it says that the wording acknowledges the equal right to life of the mother and that the laws of the State may therefore provide for the exercise of that right when it is threatened. In sharp contrast to the opening statement the Deputy goes on to talk about regulating, about providing for the exercise of a right, that is facilitating or allowing for it, which is almost the opposite of restricting it. I cannot understand the logic of the Deputy's positions, where he has moved from one side of the argument to the other in the early part of his contribution this morning. Apart from that, the suggestion  that it is permissible for the laws of the State to provide for the exercise of a constitutional right is a rather strange one, the reality being, of course, that the laws of the State must allow for the exercise of such rights.
Having made those introductory propositions—the meaning of which, as I have indicated, is open to considerable doubt—Deputy Woods then went on to make the assertion that if a mother's life was threatened by illness she would be constitutionally entitled to appropriate medical treatment even if such treatment would result in the termination of her pregnancy. I am afraid I have to say very plainly that that assertion is no more than an assertion, unsustained by any argument whatsoever because the statements that preceded it are irrelevant to the conclusion. That is why I objected to the fact that we had a Second Stage speech from Deputy Woods in which he concluded with an assertion to which the arguments did not lead.
I must ask those who are so completely happy about the present wording to face the real questions. Nobody suggests that the wording gives to the unborn child an unqualified right to life. Of course it does not. But it does acknowledge a right to life which, on the wording, the State is obliged to uphold in equal measure with that of the mother. There is no point in saying that that obligation is qualified by the words “as far as practicable” and that that is why those words were included. Those words had to be included because they are already in Article 40.3.1º. Even if they had been included for the purpose stated, it does not follow that they are sufficient or even relevant. The issue is not practicability. It is “practicable” for the law to forbid such operations. Such a law would be indefensible and outregeous but not impracticable”.
We are therefore back to the stark question whether the carrying out of such an operation can be reconciled with the specific words of the original text which, I must repeat, requires that the right to life of the unborn be upheld in equal measure with that of the mother. The difficulty that has been raised is that, where such an operation is carried out,  necessary and legitimate and laudable though it be, the right to life of the unborn is not being upheld and it is not sufficient for anybody to say that the mother has a constitutional right to protect her life if in fact the Constitution is expressing, without any qualifications whatsoever, an equal right for the foetus.
It is very easy to be misunderstood on an issue like this. I am very well aware of the fact that people's thinking in this respect can be influenced by the fact that they believe that the right to life in both cases is intrinsically equal. It is no part of the case that I am making that the wording should express a different principle. In my view it does not need to do so but I continue to believe that, if it is to express with clarity what its sponsors intended to mean, then, without purporting to express any principle on the matter, it should have acknowledged that in certain circumstances certain forms of intervention would not be unlawful—that is to say, that the law of the State would not intervene to stop such interventions. That would involve no statement of basic principle as to the respective values of the two lives and therefore no conflict with basic principles which very many people hold as sacred. It is so well known as scarcely to merit repeating that there are many things which, in the Judaeo-Christian tradition, have been universally regarded as wrong but which, for good and sufficient reasons, the law of the State does not declare to be unlawful.
I am afraid, therefore, that what Deputy Woods has said does not answer the questions I have raised. What he has said does not really face the questions at all. I was very disappointed with him in this respect this morning. I think I am entitled to inquire if the Deputy bothered to listen to or to read what the questions were. He alleged here today that one of my questions was a fundamental one about whether we should have a Constitution and what we should have in it. I said nothing, by way of question or otherwise, remotely like that. He said I asked what was the position of the State in relation to protecting fundamental rights and went on to comment that the killing of the unborn is an issue affecting the  secular and social order of the State as if I had suggested the contrary. I put no such question and, far from denying that abortion affects the secular and social order, I would regard it as so self-evidently true as not to need saying.
The Deputy refers me to a document by Professor Walter Murphy of Princeton as if in some way I had expressed some different opinion, and tells the House, by way of explanation, that I asked for some relevant references. A script of my remarks was circulated and can be checked. There is not a word in it about my seeking relevant references.
Dr. Woods: : The Minister might need some.
Mr. Noonan: (Limerick East): I asked the Deputy questions but he evaded them by answering questions that I did not put. If the Deputy as Minister sponsored the original text, he should be prepared to explain it to the House, as I have explained our amendment.
The simple fact, as I have said, is that the questions I put have not been faced. There is no point in telling us that similar language is used in the Constitution to express and regulate a whole host of other rights. We are all aware of that. But the relationship of mother and unborn child is unique in its intimacy. Nowhere else, as far as I know, does the law have to cater for a situation where something may be done to save one life in the certain knowledge that it will lead to the loss of another life. That, fundamentally, is why wording that is quite acceptable in ordinary situations can cause problems here.
I repeat my question. Why did the text take a form that, at best, clearly calls for a considerable degree of interpretation when its intended meaning could have been stated clearly? I do not understand that. I can see that what concerns people here today more than anything else is the question of the respective rights of the mother and child. Deputy Woods admits that the word “unborn” is ambiguous and vague but to a large degree he has repeated what he said on Second Stage,  that was, that despite what undoubtedly would have been the wishes of the promoters of this amendment and of the majority Church on this island, there is no attempt in the wording of the amendment to define the moment at which the life of the unborn begins. He went on to say that most would argue that life beings at the time of conception but that this is a matter of theological and scientific argument and that in preparing the wording of the amendment Fianna Fáil considered it was not appropriate to the Constitution to have such definitions. In effect that means that there was a failure to take a decision as to when the protection of the unborn life should commence and that Fianna Fáil were leaving it to the courts to decide that matter. In so far as Deputy Woods answered the questions at all he said on Second Stage that he purposely allowed the wording to be ambiguous because he wanted it to be ambiguous.
Dr. Woods: : The word “ambiguous” was not used. The amendment was framed in the language of the Constitution. I made that clear. It is regrettable that the Minister was not so forthcoming early in the day.
Mr. Harte: : Deputy Woods is disobeying his leader but perhaps he may have to pay the same price as I have paid in that respect.
Mr. Noonan: (Limerick East): If this had been a normal Committee Stage debate, the Minister would have been on his feet several times today but the debate did not proceed on those lines. I am picking up the main points made by the Opposition and which are relevant to the words before us. Deputy Woods made a major contribution. I am not misquoting him. He says that the word “unborn” is used without qualification as a matter of policy so that it might be interpreted subsequently. Will it be interpreted as meaning from the point of fertilisation, as from the point of implantation or from the point when the foetus develops a brain? I do not know what decision the Supreme Court would reach in that regard. I am  only saying that Fianna Fáil wish to have enshrined in the Constitution an amendment which the person who put it forward in the first place is declaring to be unfair.
Clearly it is possible to draft an amendment which gives a right to the unborn and which also provides that intervention necessary to save the life of a mother need not be unlawful. For some policy reason a choice was taken not to go along those lines. I have answered the points raised and I have expressed the effect of the amendment I am proposing. I am not sponsoring the amendment put forward by Fianna Fáil but that party have failed to deal with the points raised on this side of the House throughout this debate.
There is one point on which I would agree largely with Deputy Woods. He expressed the hope that this debate would not become sectarian. In a small country such as ours it would be regrettable if a debate about something so fundamental were to be sectarian. However, even something trivial could become sectarian if Churches took opposing views on it or continued to argue on opposing sides. The debate in question was not sectarian at the beginning but there is grave danger now, if we are not already into that area, that we are approaching a stage where there is a sectarian dimension. I appeal to Deputies on all sides at least from this point forward to cool the situation in that respect so that we may not become involved in a divisive and sectarian debate that would divide the  country in the course of a referendum campaign.
Finally, I should like to say that the amendment I am putting forward tonight substitutes completely for the original wording. What Deputies will be doing when they are voting on my amendment is that they will not only be voting for my amendment but against the words already in the Bill. It is proposed on this side of the House that that will be the test for one or the other. We will vote on it in the clear knowledge that we are voting for the amendment I am proposing and, at the same time, voting against the original wording. Beyond that we do not propose to vote and, depending on what happens in the vote, we will not obstruct the passage of the Bill further.
An Ceann Comhairle: : It is now 6.30 p.m. and I must, in accordance with the order made by the House this morning, put the questions necessary to bring to a conclusion proceedings on the Third, Fourth and Fifth Stages of the Eighth Amendment of the Constitution Bill, 1982, and on the Second, Third, Fourth and Fifth Stages of the Referendum (Amendment) Bill, 1982.
Cuireadh an cheist: “Go gcuirfear an Sceideal nua isteach ann.”
Question put: “That the new Schedule be there inserted.”
Rinne an Coiste votáil: Tá, 65; Nil, 87.
The Committee divided: Tá, 65; Nil, 87.
Birmingham, George Martin.
Conlon, John F. Durkan, Bernard J.
Enright, Thomas W.
Farrelly, John V.
Harte, Patrick D.
Cooney, Patrick Mark.
Dukes, Alan. Mitchell, Jim.
Sheehan, Patrick Joseph.
Blaney, Neil Terence.
Burke, Raphael P.
De Rossa, Proinsias.
Fitzgerald, Liam Joseph.
Gallagher, Denis. Treacy, Seán.
|Gallagher, Pat Cope.
Haughey, Charles J.
Mac Giolla, Tomás.
Noonan, Michael J.
O'Malley, Desmond J.
Treacy, Noel. Walsh, Seán.
Wilson, John P.
Tellers: Tá, Deputies Barrett (Dún Laoghaire) and W. O'Brien; Nil, Deputies B. Ahern and Briscoe.
Faisnéiseadh go rabhthas tar éis diúltú don cheist.
Question declared lost.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Leasú Uimh. 2:
I gCuid I, leathanach 5, líne 24, “na mbeo gan breith chun a mbeatha” a scriosadh agus “an duine daonna gan breith chun a bheatha” a chur ina ionad,
I gCuid II, leathanach 5, líne 30, “unborn” a scriosadh agus “unborn human being” a chur ina ionad.
—(Na Teachtaí Mac Giolla agus De Rossa).
Amendment No. 2:
In Part I, page 4, line 23, to delete “na mbeo gan breith chun a mbeatha” and substitute “an duine daonna gan breith chun a bheatha”,
In Part II, page 4, line 29, to delete “unborn” and substitute “unborn human being”.
—(Deputies Mac Giolla and De Rossa).
Cuireadh an cheist: “Go bhfanfaidh na focail a thairgtear a scriosadh”.
Question put: “That the words proposed to be deleted stand”.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Leasú Uimh. 3:
I gCuid I, leathanach 5, línte 25 agus 26, “ag féachaint go cuído chomhcheart na máthar chun a beatha” a scriosadh agus “ag géilleadh do cheart na máthar chun a beatha agus a neart coirp (corp in iomlán)” a chur ina ionad,
I gCuid II, leathanach 5, línte 30 agus 31, “with due regard to the equal right to life of the mother” a scriosadh agus “subject to the right of the mother to life and bodily integrity” a chur ina ionad.
—(Na Teachtaí Mac Giolla agus De Rossa).
Amendment No. 3:
In Part I, page 4, lines 24 and 25, to delete “ag féachaint go cuí do chomhcheart na máthar chun a beatha” and substitute “ag géilleadh do cheart na máthar chun a beatha agus a neart coirp (corp in iomlán)”,
In Part II, page 4, lines 29 and 30, to delete “with due regard to the equal right to life of the mother” and substitute “subject to the right of the mother to life and bodily integrity”.
Cuireadh an cheist: “Go bhfanfaidh na focail a thairgtear a scriosadh”.
 Question put: “That the words proposed to be deleted stand”.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diultú don leasú.
Amendment declared lost.
Leasú Uimh. 4:
I gCuid I, leathanach 5, líne 28, i ndiaidh “gur féidir é”, “gan cur isteach ar aon cheart nó deis dlíthiúil a bhaineann le saoránaigh faoi láthair” a chur isteach,
I gCuid II, leathanach 5, líne 32, i ndiaidh “practicable”, “without interference with any existing right or lawful opportunity of any citizen” a chur isteach.
—(Na Teachtaí Mac Giolla agus De Rossa).
Amendment No. 4:
In Part I, page 4, line 27, after “gur féidir é” to insert “gan cur isteach ar aon cheart nó deis dlíthiúil a bhaineann le saoránaigh faoi láthair”,
In Part II, page 4, line 31, after “practicable” to insert “without interference with any existing right or lawful opportunity of any citizen”.
—(Deputies Mac Giolla and De Rossa).
Cuireadh an cheist: “Go ndéanfar an leasú.”
Question put: “That the amendment be made.”
Faisnéiseadh go rabhthas tar éis díultú don gceist.
Question declared negatived.
 Faisnéiseadh go rabhthas tar éis díultú don leasú.
Amendment declared lost.
Leasú Uimh. 5:
I gCuid I, leathanach 5, líne 28, an méid seo a leanas a chur isteach i ndeireadh an fho-ailt “Ní bheidh an fo-alt seo intriailte ag Cúirt ar bith ach amháin i gcás cúis ag éileamh alt 58 den Offences Against the Person Act, 1861, a dhearbhú a bheith in aghaidh an Bhunreachta seo nó in aghaidh aon fhorála den Bhunreacht seo.”,
I gCuid II, leathanach 5, líne 33, an méid seo a leanas a chur isteach in ndeireadh an fho-ailt “This subsection shall not be cognisable by any Court except in a case seeking to have section 58 of the Offences Against the Person Act, 1861, declared unconstitutional or contrary to any provision of this Constitution.”.
—(Na Teachtaí Mac Giolla agus De Rossa).
Amendment No. 5:
In Part I, page 4, line 27, to add at the end of the subsection “Ní bheidh an fo-alt seo intriailte ag Cúirt ar bith ach amháin i gcás cúis ag éileamh alt 58 den Offences Against the Person Act, 1861, a dhearbhú a bheith in aghaidh an Bhunreachta seo nó in aghaidh aon fhorála den Bhunreacht seo.”,
In Part II, page 4, line 32, to add at the end of the subsection “This subsection shall not be cognisable by any Court except in a case seeking to have section 58 of the Offences Against the Person Act, 1861, declared unconstitutional or contrary to any provision of this Constitution.”.
—(Deputies Mac Giolla and De Rossa).
 Cuireadh an cheist: “Go ndéanfar an leasú.”
Question put: “That the amendment be made.”
Faisnéiseadh go rabhthas tar éis díultú don gceist.
Question declared negatived.
 Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Cuireadh an cheist: “Gurb é an Sceideal an Sceideal a ghabhann leis an mBille.”
Question proposed: “That the Schedule be the Schedule to the Bill.”
Rinne an Coiste vótáil: Tá, 87; Níl, 13.
The Committee divided: Tá, 87; Níl, 13.
Blaney, Neil Terence.
Burke, Raphael P.
Cosgrave, Liam T.
Cosgrave, Michael Joe.
Fitzgerald, Liam Joseph.
Flanagan, Oliver J.
Gallagher, Pat Cope.
|Haughey, Charles J.
Noonan, Michael J.
O'Malley, Desmond J.
Wilson, John P.
De Rossa, Proinsias.
|Mac Giolla, Tomás.
Tellers: Tá, Deputies B. Ahern and V. Brady; Níl, Deputies Taylor and Mac Giolla.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Cuireadh agus aontaíodh Alt. 1 agus 2.
Sections 1 and 2 put and agreed to.
Cuireadh agus aontaíodh an Réamhrá.
Preamble put and agreed to.
Cuireadh agus aontaíodh an Teideal.
Title put and agreed to.
An Ceann Comhairle: : Since there are no amendments on the Fourth Stage we now proceed to Fifth Stage in accordance with Standing Orders.
Cuireadh an Cheist: “Go rithfear an Bille anois”.
Question put: “That the Bill do now pass”.
Rinne an Dáil vótáil: Tá, 85; Níl, 11.
The Dáil divided: Tá, 85; Níl, 11.
Blaney, Neil Terence.
Burke, Raphael P.
Cosgrave, Liam T.
Cosgrave, Michael Joe.
Daly, Brendan. Molloy, Robert.
Noonan, Michael J.
O'Malley, Desmond J.
Fitzgerald, Liam Joseph.
Flanagan, Oliver J.
Gallagher, Pat Cope.
Haughey, Charles J.
MacSharry, Ray. O'Rourke, Mary.
Wilson, John P.
De Rossa, Proinsias.
|Mac Giolla, Tomás.
Tellers: Tá, Deputies B. Ahern and V. Brady; Níl, Deputies Taylor and Mac Giolla.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
|Last Updated: 14/09/2010 09:16:23||Page of 69|