An Bille um an Dóú Leasú Déag ar an mBunreacht, 1992: An Dara Céim (Atógáil). Twelfth Amendment of the Constitution Bill, 1992: Second Stage (Resumed).

Wednesday, 21 October 1992

Dáil Éireann Debate
Vol. 424 No. 1

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[19] Atairgeadh an Cheist: “Go léifear an Bille an Dara Uair”.

Question again proposed: “That the Bill be now read a Second Time”.

Atógadh an díospóireacht ar an leasú a 3;

Go scriosfar an focal “anois” agus go gcuirfear na focail seo a leanas i ndeireadh na tairisceana, eadhon, “an 15 Eanáir, 1993, nó ar cibé dáta is luaithe ná sin a chinnfidh an Dáil, tar éis don Dáil i dtosach plé a dhéanamh, go dtí Céim an Choiste agus an Chéim sin san áireamh, ar reachtaíocht atá ceaptha chun léiriú breise a dhéanamh ar an gcaoi a gcuirfear forálacha an Bhille seo i ngníomh go praiticiúil”.

Debate resumed on amendment No. 3:

To delete “now” and add at the end of the motion the words “on 15 January, 1993 or on such earlier date as may be determined by the Dáil, after the Dáil has first discussed, up to and including Committee Stage, legislation designed to elaborate on the practical implementation of the provisions of this Bill”.

Mr. Ferris: Information on Michael Ferris  Zoom on Michael Ferris  I propose to share my time with some of my colleagues which I believe is an accepted procedure in this debate.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that agreed? Agreed.

Mr. Ferris: Information on Michael Ferris  Zoom on Michael Ferris  At midnight last night certain views were expressed by members of the Fianna Fáil Party, in particular, on this subject and during the debate they almost tried to wash their hands of the [20] situation which arose in 1981 and 1983. I should like to put the record straight. In 1983 the Parliamentary Labour Party, in the Seanad in particular, were totally opposed to the taking of that Bill on Second Stage because, as we pointed out with considerable force having regard to the legal advice available to us at that time, the words presented by Fianna Fáil and supported by the Pro-Life Movement could lead us into dangerous situations which would put people's lives at risk. It does not give me any satisfaction — or the Labour Party any kudos — to say that our worst fears in 1983 were confirmed and that the words that were used or, more specifically, the legal interpretation of the words used have led to where we are today in regard to this matter. Are we about to make the same mistake again and if we are, will we compound the original mistake? By the insertion of these words in the Constitution will we do a disservice to the lives, welfare, health and protection of more than 50 per cent of our population, whether they are our wives or our daughters? Should we be asked by any Government to accept words which would give women a lesser right to life than anybody else? That brings us back to the question of leadership, trust, consensus or whatever.

The Labour Party tried to achieve a consensus in this regard and, as has been said, it is doubtful whether the Government side ever wanted to reach a consensus. They obviously had their minds made up as was the case when they were in Opposition in 1983. Because the electorate trusted the Fianna Fáil Party and the Pro-Life Movement in 1983 they voted overwhelmingly for what they believed to be correct, to protect the life of the unborn and the mother and the Constitution was amended giving both the child and the mother equal rights in a pregnancy where a choice might have to be made. Unfortunately, when a case arose where that choice had to be made, namely the X case, we discovered the implications of that decision. From discussions I have had with people in my constituency, I am satisfied that the majority of people in giving that view in [21] 1983 believed that what they were doing was giving a positive right to the unborn child and an equal right to the life of the mother. To date, I have not seen any evidence to suggest that the people have changed their minds in regard to that decision. The majority of people whom I know want to protect the life of the unborn and the lives of women and girls at risk during pregnancy. We, in the Labour Party, share those objectives which is why our leader said yesterday that he is the pro-life leader of a pro-life party which is the oldest pro-life party in the country. At the same time, we believe that few people in Ireland would want to place a restriction on the freedom of any of those people to travel.

During the debate on the Maastricht Treaty Deputy O'Kennedy, who is a barrister, said there was no restriction on people in regard to travel and members of the Government also said this. Some judges of the Supreme Court said that there was a restriction on travel and patiently explained why and under what circumstances. It is extraordinary that Mr. Binchy informed us that he sees no problem in regard to the right of women to travel. We do not need that kind of assurance from a self-appointed spokesperson such as Mr. Binchy or, for that matter, from any group. However, a question was raised in regard to the right to travel in certain circumstances and, therefore, it was patently misleading for people, such as Deputy O'Kennedy and others, to suggest that there was any confusion in this area. It is for that reason there are three Bills before the House today, in regard to the right to travel, the right to information — on which, at last, people have reached agreement — and the right to abortion.

We must ask ourselves if we are doing a disservice to the people again, because we have shown a lack of leadership or, indeed, courage in being unable to get the Government to agree to address any of these problems by way of legislation by which they could have been dealt with by way of intrinsic amendments in this House, but the Government ran away from this problem. The X case was [22] brought to the Supreme Court and the Government castigated that court and its members for their decisions. The Minister for Justice has now assured everybody that there is no problem in this regard and that in the Government's view a consensus has been reached. They say that all the people, including the pro-life people, were wrong, apart from the Minister for Justice. Last night the Minister for Health assured us that he would lay down regulations and guidelines for the medical profession who have already stated that they are divided on this issue. How can we lay down regulations for professional people who will be confronted in the future with making a decision that is supposed to combine its movements within the constrictions in the Constitution, defend the right to life of the mother and the unborn, with all the pious platitudes and aspirations that one expects in a Constitution? It is a very dangerous way to deal with this matter. It comes back to trust: can anybody trust any medical or legal view of any side of this House when from experience in this very difficult area we know this issue could eventually be returned to the Supreme Court for their interpretation of what we now accept, or do not accept, will be inserted into our Constitution? Can anyone trust the Government on their record on these issues when we remember that during the Supreme Court case — which they suggested would be taken and for which they agreed to cover the costs — a barrister representing them in the Supreme Court said that if an English woman came to Ireland, learned she was pregnant and wished to return to England to avail of what is a legal service there, and if he learned of her pregnancy he would have no choice but to prevent her returning to England?

How can we trust a Government who have decided, without consultation, to insert a Protocol into the Maastricht Treaty? Can we trust them when they told us that this Protocol would be legally binding but then sought a derogation on the Protocol? Having discussed the matter with their colleagues in Europe we were given another assurance that it [23] would have legal binding when the legal opinion from Europe at the time was that it would not. How did the Minister, Deputy Flynn, deal with the Protocol in his speech yesterday? He said:

The Protocol relates to Article 40.3.3 as it stood on 7 February 1992 when the Treaty was signed. On the face of things Article 40.3.3 as interpreted by the Supreme Court should retain the protection of the Protocol when the Treaty comes into effect and this would mean that abortion could not in any event be legalised beyond the extent permitted by the Supreme Court. The Solemn Declaration on the Protocol to the Treaty, adopted by the member states on 1 May 1992...

One can question with hindsight whether that Solemn Declaration means anything. It provides that—

... in the event of a constitutional amendment of Article 40.3.3 the contracting parties to the Treaty will, following the entry into force of the Treaty, be favourably disposed to amending the Protocol so as to extend its application to any such constitutional amendment. If the Twelfth Amendment of the Constitution is passed the question of invoking the procedure set out in the Solemn Declaration with a view to securing an amendment of the Protocol will be taken up.

If the Government do take it up, can we trust them or will we be left again with two constitutional amendments, one of which has already been interpreted by the Supreme Court and the other which we are trying to ensure they cannot reinterpret? We then have to link that with our colleagues in Europe, the contracting parties to a Solemn Declaration. All we can say to the Irish people today is that it will be taken up. Our party leader was correct yesterday when he stated that for the first time this Bill will incorporate into our Constitution the principle of legal abortion.

Our task is to reassure the Irish people [24] that they can trust the legislators. When it comes to this subject they have stated that they cannot trust them. I have met various groups and I had letters from people, such as Sister Brid McKenna, a person for whom I have the greatest respect, and with whom I could not disagree about anything she stated in her letter.

I have also met people representing the pro-life movement in my constituency and I did not notice any sign of intransigence in their views. They were concerned that the opinion they had expressed in 1983 had been proven to be incorrect. I suggested that they come up with alternative wording if they were so concerned about the matter. These people were reasonable and we had a consensus in that all of us felt we had a duty to perform. However, when the pro-life movement suggested an alternative wording to the Government recently, the Government rubbished it. Yesterday the Minister, Deputy Flynn, rubbished the idea of any wording that the pro-life movement put to him. He gave us legal views as to why they were not acceptable. Indeed, the Minister has treated suggestions from all the political parties with disregard. In other words, he is right, and what he says is right. As President Bush would say, “read my lips”; it is like a papal dogma; he does not make mistakes.

This was the line followed by Deputy Briscoe last night. Now that the Minister, Deputy Flynn, the Minister for Health, Deputy O'Connell, and Deputy Briscoe have spoken there is no need to continue this debate. That is a very intransigent attitude to adopt when people are concerned about this issue and it will not be resolved with the wording that has been presented by the Government. That will lead to further difficulties and make more difficult the task that lies ahead.

Apart from suggesting amendments to the Government this week, our task is to protect the rights espoused by all Deputies and that will involve much debate, argument, compromise, analysis and, finally, a decision which we should not simply dump on the electorate by saying it is the only option. The reality is [25] that in this case they have no options. They have the opportunity to vote Yes or No on two items that are not contentious, but then they must vote on an issue which gives them no option, an issue they felt they had decided in 1983.

There are fundamental differences in our approach to these matters and I am concerned that this will lead to further divisiveness. It will lead to a national debate that no Member will understand because it will be so emotive. If the pro-life movement takes on the Government — it is quite obvious that the Progressive Democrats are unhappy — it will be an amazing turn of events that two groups, who were originally merged, will come apart because the Government are providing for legalised abortion in the Constitution.

Those are the options the Irish electorate have. The electorate accepted the advice given them in 1983, foolishly in our opinion. That will pale into insignificance when they consider the confusion that will arise on the legal interpretation of the wording. There are members in my party who are more capable of interpreting these words. I am concerned, having listened to the medical and legal advice available, that the words proposed by the Government do not address the question.

In my opinion it will be necessary, irrespective of whether this legislation is passed, to introduce some legislative measure to address the two aspects of these constitutional amendments, the question of information and of the right to life of the unborn and the superior right to life of the mother when her life is at risk. They are two important areas and the Government have not satisfied me that they know or care what they are doing in this regard.

I hope that when this debate ends people will be clearer in their minds as to the options before them which are being put forward in haste, without proper debate or any effort to reach consensus.

Mr. Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  As a man I feel somewhat inhibited talking about these matters, [26] particularly the substantive issue, because no man can fully appreciate or understand the emotions and feelings that women experience in the process of conceiving and bearing a child, or perhaps losing a child. It is with that caveat, of which I am painfully conscious, that I contribute to this debate.

The history of this sad and sordid constitutional mess is rooted in something which I find to be offensive, fundamentally anti-democratic and anti-republican. The claim made by some people is that politicians are not to be trusted and therefore into our Constitution had to be written a provision for the protection of the life of the unborn, so that no group of elected politicians could at some future stage remove that protection. A group of highly motivated, well financed and fanatical fundamentalists unfortunately persuaded the then Fianna Fáil Leader, Deputy Haughey, and the then Leader of the Fine Gael Party, Deputy Fitzgerald, to give a commitment in 1982 to insert in our Constitution the amendment which has brought us to the point where we are today. That is where it started. It is to his eternal credit that the late Frank Cluskey in his inimitable fashion told those people where to get off. It is a tribute to the courage of the present Leader of the Labour Party that within a week of taking on that responsibility in November 1982 he said that he would not give such a commitment to these fundamentalists because of the constitutional implications which could arise from the proposed wording. The rest is history, but history has a tragic way of repeating itself. I cannot use the Marxist phrase, “once in tragedy, second in farce” because this is no farcical matter. It is an extraordinary matter which is of concern to everybody.

The Fianna Fáil Party unashamedly exploited the decency and religious belief of large numbers of the population in 1983. They mobilised those sincere people, telling them there was a way to amend the Constitution which would not have complications. In 1983 the people in Dublin South-East, my constituency, who silently manned the polling stations [27] were in many cases Fianna Fáil activists wearing pro-life labels and taking pleasure in what they saw as the political discomfort of the Government of the day. There was total disregard for the sincerity and beliefs of the people whose hearts and minds they had mobilised and total disregard for the political damage they were inflicting on the fabric of this republic by putting into the Constitution a nonsensical wording which would ultimately be found to be contradictory by the Supreme Court. Today Fianna Fáil can run but they can no longer hide. They have to say that they are legislating for abortion.

I wish to refer to two parts of yesterday's speech by the Minister for Justice. I am not purporting to include the Progressive Democrats in this farce. The Minister said:

Under the amendment, where a pregnant woman is suffering from a physical medical condition such that her life is endangered if the pregnancy continues, the pregnancy may be lawfully terminated if that is necessary to save her life.

For lawfully terminated, use the more colloquial phrase, the pregnancy may be legally aborted. The Minister continued:

There is no warrant whatsoever for any suggestion that the amendment will open the door to abortion. It is most emphatically not an abortion amendment. Far from making the law concerning abortion more permissive, as some people are wrongly suggesting, the amendment will have exactly the opposite affect: it will prohibit abortion in circumstances where it is now permitted without disturbing existing medical practice and without putting mothers' lives at risk.

Mr. Rabbitte: Information on Pat Rabbitte  Zoom on Pat Rabbitte  Terry Prone was writing the script.

Mr. Quinn: Information on Ruairí Quinn  Zoom on Ruairí Quinn  When is an abortion not an abortion? This is the nub of the question. [28] This Fianna Fáil pro-life Government are putting forward legislation to give legal effect to abortion. They have insulted, misled and betrayed a constituency, in many cases a sincere and well meaning constituency, who trusted them. I hope that lesson of betrayal will be learned by that constituency at the appropriate time.

We have three Bills before us relating to three proposals which will be put to the people on 3 December. Citizens are being asked to vote for the right to travel. In 1992, after the collapse of the Berlin Wall and the fall of the dictatorship in Argentina, the collapse of totalitarianism in countries like Greece, Portugal and Spain and after the amelioration of the fundamentalist Islamic Republic's stance in relation to women's rights in Iran, in this Republic of Ireland citizens are being asked to affirm by way of an amendment to the Constitution, because of an interpretation by the Supreme Court of the 1983 amendment, the right to travel. As a citizen, I find that absolutely insulting and if I was a woman I would feel degraded by being asked to vote to affirm that right. Nevertheless I will vote and will recommend that people generally do so. The right should never have been questioned in the first place.

The second point is the right to information. What kind of country is this republic when we have to affirm the right to information about services which are legally available? When did the Inquisition end? When did the Cold War end? When did “darkness at noon” end? What is the mentality of a political party who can bring themselves in 1992, eight years from the end of a second millenium and 70 years after this State was created by people who had the courage to put words on paper honestly and openly, to ask us to do this sort of thing? They claim it is necessary because of the Supreme Court judgment, a judgment which they repeatedly asserted in 1983 could not possibly be made. Now we have to vote for the right to information about services legally available.

I publicly applaud the students who led the charge in this matter. I hope as a consequence of this right being formally [29] put back into the Constitution that the oppressive witch hunt that SPUC have mounted against those students, both collectively and individually, will cease. That witch hunt had the effect that many of those students who were cited and charged in various judgments still have hanging over their heads the threat of legal costs resulting from previous actions, which would have the effect of bankrupting any one of those students. As has been said by an eminent lawyer they have been effectively exiled from this country by virtue of the SPUC threat to pursue them in the manner in which they have been pursued. No doubt, Deputy Taylor will be better able to refer to that, if he chooses.

With regard to the substantive issue, we have here a proposal to introduce abortion under our Constitution, but a commitment not to provide legislation to interpret how it can be administered by doctors, nurses and hospitals or understood by lawyers and everybody else. I do not know of any other provision in our Constitution about which the Government say, “we will put this in”, while giving an undertaking in advance that under no circumstances will they produce legislation to enable us to understand or interpret it. It is like demanding that a pilot be sent up into the air without a flight plan, instructions, maps or navigational equipment. What a risky way to embark on any kind of civil action. Ultimately this will again end up in the Supreme Court and we will have a Y case.

Hard cases make bad law, yet we are being asked to use the wording from the X case judgment which refers to saving the life as distinct from the health of the woman. The Minister justifies the reason for using that sacrosanct phraseology by saying it is because it came from one of the Supreme Court judgments. It is certainly a very eminent judgment but it should not be sacrosanct. We are not locked into it. We should do what the late lamented Supreme Court Judge Mr. Justice McCarthy, asked us to do, take democratic courage in our hands and do [30] the job we were charged with, which is to legislate.

If we are to legislate for abortion, as we are being asked to do and as the Minister's text has clearly indicated, I do not want to save the life, as distinct from the health of any woman. I want to protect the lives of all women and their health by implication. I do not want to make a distinction and I will live with whatever way history interprets the meaning of the life of the woman and what threatens the life of any woman. Every woman should have the right to respond as she wishes if she becomes pregnant as a result of rape or incest. They should have that choice in this Republic and not have to scurry away in the middle of the night like criminals, carrying the hurt of the criminal act without having the right to have it redressed in this Republic.

The leader of the Progressive Democrats came into this Chamber and ended his speech by referring to his declaration that he will stand by the Republic. Where is his stance now? Where are the Progressive Democrats now when the Republic is being undermined by this kind of legislation that will drive citizens of this State to another jurisdiction which is much maligned in the pantheon of rhetoric from the Fianna Fáil Party, to find redress for crimes committed here, when they should, as citizens, have the right to redress here. This is the offensive nonsense we are being asked to write into our Constitution. I reject it utterly.

In the short time available to me I want to concentrate on one aspect of the referendum that will be put to the people. It is particularly odious and unacceptable that we are being asked to approve a measure that deliberately sets out to roll back the Supreme Court judgment in the X case in respect of the threat of suicide. What this provision means is that we do not trust the Supreme Court. Last night in this House, Deputy Briscoe dismissed the Supreme Court judgment as highly controversial and said that its validity had been disputed by many eminent lawyers without, of course, managing to name any of them.

[31] It follows from our Constitution that judgments of the Supreme Court cannot be invalid. One may disagree with them but they are the ultimate tribunal of assessment and interpretation of our law. In the X case the Supreme Court, to their eternal credit, got this country off a hook on which it was firmly dangling. If the Supreme Court had held otherwise what would have been the outcome assuming the unfortunate girl had carried out her threat which eminent psychiatrists had determined was a real one? That is what we have to face in this referendum so far as the issue of suicide is concerned. There is and must be a very real risk that in some cases some unfortunate girl or woman will be considered by psychiatrists to be likely to carry out a threat of suicide, and will do it.

The Minister for Justice in his speech yesterday referring to the context of danger of life from an ongoing pregnancy said:

If there were to be only one case in one million, or even ten or more million, we would have to take account of it. There is a duty on all of us to ensure that nothing is put into the Constitution which might, even in the remotest possible case, mean that action that was necessary to save a woman's life would not be taken.

If the risk to a girl or woman from suicide is only one in a million, why then do the Minister and the Government take it upon themselves to specifically exclude that case in the wording for this referendum?

The Minister says that there is considerable room for a subjective judgment in assessing whether a risk of suicide exists. Maybe there is a subjective element in it but nonetheless we have here skilled and experienced psychiatrists who know their job and we should pay attention to and respect what they say although they may say that the risk may not arise in many cases. If it arises in only one case how would any of us in this House feel if we adopt this referendum and exclude the provision for a termination [32] in the case of a threat of suicide? If the person is unable for financial and other considerations to avail of the safety net being allowed, to go to the UK to have the termination and goes ahead and commits suicide, thereby destroying herself and the foetus, how would any of us feel about carrying that on our consciences for the rest of our days in the knowledge that we contributed to it? That is one major responsibility for any Deputy to take upon himself and it is quite outrageous that the Government are prepared to put such a suggestion before us today.

Deputy Briscoe's contribution yesterday was a milder version of the whispering campaign that is being conducted by elements of the so-called pro-life movement and by members of the Fianna Fáil ever since the Supreme Court judgment was issued. That campaign has been conducted against the Supreme Court, against the girl at the centre of the X case and against her family. It has been a degrading and debasing exercise. It says far more about the people conducting it than it does about their targets. Much worse, the amendment we are being asked to pass into law in the form of a constitutional amendment is asking us to state that we do not trust women. The inference to be drawn from the whole approach taken by the Government is that if we give women any grounds for seeking abortion they will be queueing up to avail of the service. What a comment that is on the men who have put this law together.

Last night on RTE television a family that had been systematically abused by their father told in simple and moving terms of the trauma and suffering they had endured at the hands of a sexual abuser. It was a good illustration, if one were needed, of the prevalence of pain, mental disturbance and guilt that a sexual abuser can inflict, and it was an illustration in microcosm of a serious social problem that has been a hidden part of our society for many years.

Some years ago we had another illustration of a different aspect of the same [33] problem when the tragic story of Anne Lovett was carried in full detail in all our media. I can remember well meaning people all over the country saying that we must not let this kind of thing happen again. We do not know how Anne Lovett became pregnant. All we know is that the shame of her pregnancy killed her. We do not, in the nature of things, know how many victims of sexual abuse become pregnant. All we know is that those who do suffer the kind of mental torment that most of us never have to experience.

Much reference has been made in this State to the study published last week by Dr. Anthony Clare. One aspect of that study which has not been adverted to was the finding that in general terms the risk of suicide among pregnant women is lower than among the population in general, but it exists and is real nonetheless. Several reasons have been adduced by professional psychiatrists for this. First, for the great majority of families and mothers pregnancy is a happy and fulfilling event, often a long sought event. Second, there is an innate sense of responsibility and compassion that characterises women and that enables them to face motherhood in a positive spirit. Third, pregnancy is a time when families provide a high degree of support.

The study also showed that there are occasions when these ingredients might not be present, particularly in societies which have a repressive attitude and history in relation to sexual issues. The victim of rape or incest can also find herself the victim of intolerance, deprived of love and support when she needs it most, outcast from the society to which she belongs, and that is when she is most vulnerable.

Yesterday the head of a supposedly caring organisation called Women Hurt by Abortion addressed the annual general meeting of another supposedly caring organisation called Family Solidarity. He was not able to find the time in his address to refer to the victims of rape and incest. Instead he referred to women who had secured abortions and said that they had been reduced to the [34] status of garbage which produces garbage. This was the “caring” description of this caring organisation of the women they claim to care about.

Yesterday, too, the Church of Ireland Gazette published what I would describe as a truly caring response. I believe it is worthwhile quoting what they had to say for the record of this House:

Ministers must make up their minds — whether to bow to blackmail and organised pressure, or to decide that in a modern, adult society, the only honourable course is to allow people to make up their minds about the things that vitally affect their own lives — after legislation is in place to ensure order, reflection and protection for others who may be involved.

It is long past the time when we must cut through the hypocrisy that surrounds this issue in Ireland. There can be no more odious form of hypocrisy than a set of laws underpinned by a constitutional framework that says to the women of Ireland “you can have an abortion in Ireland provided you are at death's door for the want of it, and provided that you can find a doctor who will agree that you are ill enough and can reconcile the operation with his own conscience; otherwise you are free to leave and have the abortion in England — and, by the way, here is a set of brochures to facilitate you in finding a clinic somewhere else.” I find it hard to imagine a more hypocritical formula then this, and I find it hard to believe that any Government who believe in the democratic will of the people would seriously be foisting this amendment on them.

There is a famous legal textbook called Constitutions of the World. I searched for such a formula in it, looking for a parallel somewhere else, anywhere else for this proposition, but there is none. What this means is that we are about to become the first country in the world that, on the one hand, will write into our Constitution an explicit provision that will provide directly for legal abortion and, on the other, make a set of arrangements that will ensure that no woman will ever be [35] able to avail of that provision. Why are we doing it? Surely the only answer is that we have to make these kinds of arrangements because women cannot be trusted, and what on earth gives us the right to say that? On what basis are we making the outrageous assumption that women in Ireland are going to abuse the law to terminate pregancies on some sort of whim?

In a sense this debate has come full circle. It started because a small, intolerant and professional organised pressure group decided that they did not trust the legislators. Then they decided they did not trust the courts and now they have decided they do not trust women.

If I am ill and go to hospital, I am not going to stand for any doctor saying to me that I am not yet sick enough to warrant treatment. I do not know a doctor who would say it in the first place, and I am certainly not going to tolerate a doctor taking down his copy of the Constitution and telling me that according to his interpretation of the Constitution I can have one form of treatment that will probably shorten my life but that he cannot give me the treatment to protect my life.

I will campaign in any way I can to defeat this amendment. If I needed an incentive to do so it is contained in what the Government obviously see as their threat to legislate on the issue if the amendment is defeated. The defeat of this amendment would restore this whole issue to the place where it has always belonged, the Floor of this House.

Minister for Tourism Transport and Communications (Mrs. Geoghegan-Quinn): Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Tá an-áthas orm deis a bheith agam labhairt sa Teach seo ar ocáid atá chomh tábhachtach agus chomh bunúsach leis an ocáid a bhfuilimid ag plé an reachtaíocht seo a chuirfear os comhair phobal na hÉireann i bhfoirm leasuithe don Bhunreacht ar an triú lá de mhí na Nollag seo chugainn.

A Chathaoirligh, as a woman, as a feminist, as a liberal and as a life long member of Fianna Fáil I very much welcome [36] the amendments we in Government are putting before the people of Ireland on 3 December.

Amendment 12 gives full protection to the lives of pregnant women. Amendment 13 ensures that the Constitution cannot be invoked to prevent a woman travelling abroad, whatever the purpose of her journey, and Amendment 14 means that the Constitution cannot be invoked to prevent the dissemination of information about services lawfully available for women in another State.

Yesterday Deputy Shatter spoke in this House of the docile acceptance by Fianna Fáil women of the wording. About two weeks ago an eminent journalist in the Irish Press also spoke about docile women in Fianna Fáil. I cannot believe that any reasonable man — although I would have to say that I do not count Deputy Shatter in their number — can look at my political track record and hope to get away with calling me docile. Not only am I not politically docile but I was a member of the sub-committee which developed this wording.

Because these amendments enhance the position of women in our Constitution, on this issue they enhance the protection and entitlement of women.

The amendments should be welcomed by every woman in Ireland. The one that has sparked off most headlines and controversy is the one that has come to be called the substantive issue, and, as far as women are concerned, one phrase in the amendment has been singled out and attacked on the basis that it is offensive to women — that is, the phrase “as distinct from the health.”

I think many women have been concerned by this inclusion. I must also say that political opportunists, frightened of stating openly what they feel on the substantive issue themselves, have used this phrase as a stick to beat the Government with and in the process needlessly heightened the fears of women.

The political opportunists have used this phrase to frighten and mislead people. That is precisely what they are using it to do; to mislead women into the belief that there is some lack of respect [37] for their health in the way the wording runs. There is no lack of respect. On the contrary, the lack of respect is in the political opportunists on the other side of this House who know very well what the wording means, but who are prepared to sow confusion and dismay rather than acknowledge it.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  Is suicide not a health issue?

Acting Chairman (Mr. Sherlock): Information on Joe Sherlock  Zoom on Joe Sherlock  The Minister to continue without any interruptions.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Why does the wording include the phrase “as distinct from the health”? Let us get one thing clear — the pedigree behind the phrase is very distinguished. It was used by the Chief Justice in his judgment in the X case. Not only that, but as the Minister for Justice pointed out yesterday in this House, the other judges also focused on a risk to life rather than a risk to health in their judgments.

Why then should women have expressed concern? Part of the reason was a view expressed by some doctors that introducing the phrase “as distinct from the health” could be seen as limiting the flexibility which doctors are permitted to exercise in the best interests of the patient under current medical practice. The concern of those doctors was that the wording might result in pushing them for a greater degree of certainty about the risk to the mother's life before giving treatment which might result in the loss of the foetus. As all of us know, normal medical practice operates on the basis of probability, not certainty.

If those are the concerns of women — mirroring the concerns of doctors — let me offer some ease and clarification. The amendment is not seeking from doctors a greater degree of certainty about the risk to the mother's life before providing treatment. Nothing in the wording changes the basic test given by the Supreme Court in the X case as “a real and substantial risk to the mother's life arising as a matter of probability.” Let me put it [38] more bluntly — pregnant women will not be denied medical or surgical treatment necessary to protect their health. As at present, under the amendment women will receive all treatment necessary to protect their health. The question of termination only arises where there is a threat to the mother's life.

Let us imagine, for a moment, that we were to remove the words “as distinct from the health” from the proposed amendment. This would mean that we were omitting from the constitutional provision which reproduces the essence of the test laid down by the Supreme Court, an element which now would be significant because of its omission. If it could be safely left out, we would leave it out, but we cannot, because if we left it out any future hard case which was not related to a life-threatening condition could be the ground for abortion. I am not scare-mongering; I am extrapolating from the British experience. This is precisely what happened there, in the Bourne case, and the end results of that case are clear.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  They are not clear.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  In seeking to misconstrue the wording “as distinct from the health” as anti-women, Members of the Opposition are knowingly fudging the issue of the consequences which would be inevitable if that phrase were removed. The Twelfth Amendment seeks to maintain a just and proper balance between the right to life of the mother and the right to life of the unborn child.

Let me spell out yet another reassurance for women — as the Supreme Court pointed out, the threat to a woman's life need not be immediate. A pregnancy may be terminated if doctors form the view that even after recovering from childbirth other treatment for whatever she was suffering from during the pregnancy would be ineffective to save her life. Overall, the most important reassurance for women comes from the essential meaning of the whole amendment: “all [39] treatments necessary to save her life will be allowed——

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  But not her health.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  ——and her entitlement to have her right to life vindicated will be safeguarded.” Let me state my personal belief without equivocation. The Government have shown courage and a commitment to women in this wording. Courage? Any wording which provokes the extremes of an argument into such vehement antipathy requires courage. There are safer options but we did not take them. Commitment of women? Of course, because we are being realistic about the threats to a woman's health.

Let nobody tell me that a life threatening illness, associated with pregnancy or exacerbated by pregnancy, can never happen. It can happen, does happen and will happen, and when it happens there is an absolute imperative that a doctor has the right to take action involving termination of the pregnancy to save the woman's life. A substantial minority of our doctors see it that way. They believe that there are rare cases where, to save a woman's life, termination of pregnancy is medically indicated.

Knowing that there are doctors who have seen such rare cases, how could the Government pretend that they do not exist? How could the Government fail to acknowledge the right to protection of this group of women — this small group of women? We could not fail to acknowledge the right to life of those women.

Because we are pro-life in the full meaning of that often abused term, we are pro the life of the unborn and of the mother, and we are, in good conscience and with good intent, seeking to amend our Constitution to express both concerns in a realistic and humane way.

It is very easy to be pro-life if you limit your concerns to the life of the unborn. It is also very simplistic and very, very dangerous for women. We must be pro-life in the fullest sense and that is what this wording expresses. Someone once [40] said that there is an answer to every question that is simple, straightforward and wrong. Legislation, as an answer to the abortion question, is simple, straightforward and wrong.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  Why?

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Any legislation introduced without an amendment of the Constitution would have to accept in full the findings of the Supreme Court in the “X” case, not to mention the very real threat that, were legislation to be proposed, the kind of posturing we witnessed here yesterday would be exacerbated not alone inside but outside the House.

It is interesting to have members of the Opposition warily predicting a divisive and destructive debate on this issue when, at exactly the same time, those members of the Opposition are using precisely the wording most calculated to create that divisive and destructive debate. Yesterday, in this House, members of the Opposition chose to use words like “cruelty”, “brutal and divisive”, “cowardice”, “misogynistic” and “immoral”.

Who are the Opposition kidding with their sanctimonious predictions that the plain people, left to themselves, will have a graceless and distasteful debate? What could be more graceless and distasteful than the contributions of yesterday, with their intention of raising fears and anger and their deliberate misinterpretations of the implications of the wording? The real truth is that the people can be trusted to conduct their affairs, to debate this issue and to have the final say on this issue. They can be better trusted than some members of the Opposition.

I was quite astonished to hear the Leader of the Opposition say yesterday that this was dumping the issue on the Irish people. I find that to be a strange view of the ultimate step in the democratic process.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  If there is so much confusion in here can one imagine what it is like on the ground?

[41]Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  The Irish people are going to make a decision because they are now well aware that the position obtaining under Article 40.3.3º of the Constitution is at variance with what many thought it would be in 1983.

Mrs. Fennell: Information on Nuala Fennell  Zoom on Nuala Fennell  Whose fault is that?

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  A decade later it is the essence of democracy that on an issue which speaks the most deeply held convictions in every strand of Irish life, in every age group in every socioeconomic grouping, that on such an issue, we should hear the national voice through the process of a referendum.

If the people decide not to adopt the Twelfth Amendment, then legislation will be introduced by the Government to regulate the position obtaining as a result of the X decision. That is not a threat; it is an inevitability. If the position obtaining after the X case is not addressed by way of amendment to the constitution, it has to be dealt with by legislation, and there are no alternatives.

The Government are proposing a form of amendment that protects women and protects the unborn. We hope, we trust, we expect that the constitutional amendment will pass, but, to cover the eventuality that it might not pass, we must indicate precisely what our legislative proposals would be to cover that eventuality. That is proper; it is necessary; it is open, and only speakers with a deadly poverty of ideas would portray it as a threat to anybody.

Cuireann daoine an cheist, cén fáth a bhfuil gá le reifreann ar chor ar bith? Cuireann reifreann toil na ndaoine in iúl agus sin é bunús an daonlathais. Gabh mo leithscéal, a Chathaoirligh, níl óráid agam, níl agam ach roinnt nótaí a rinne mé féin ach, mar a thuigim, beidh seirbhís aistriúcháin ar fáil dóibh siúd nach dtuigeann an Ghaeilge.

Tar éis na breithe a thug an Chúirt Uachtarach i gcás X caithfidh reifreann bheith ann faoi chearta eolais agus taistil agus ní chreidimse go mbeadh mórán céille leo sin mura dtabharfaí aghaidh anois freisin ar an gceist mhór mar atá á [42] tabhairt air anois chuile áit. Cén fáth nach bhféadfaimis fanacht in ionad reifreann a chur ar siúl anois díreach? Bhuel, ní fheicimse go bhfuil aon tairbhe le baint as fanacht níos faide. Chomh fada agus a bhaineann sé le cearta taistil——

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  On a point of order, my Irish is not sufficiently good to understand this debate and I would like to know whether a translation is available to us.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  I said in Irish that translation is available and that I had indicated to the translation service that I would be speaking in Irish.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I support the Minister's right to speak in Irish and I also support the rights of women to their health.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  I do not deny the Minister the right to speak in Irish; I just want to know what she is saying.

Acting Chairman (Mr. Sherlock): Information on Joe Sherlock  Zoom on Joe Sherlock  A translation will be available to Deputies.

Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Chruthaigh cás X go bhféadfaí urghaire a fháil, mar a fuarthas, le cosc a chur ar bhean a bhí ag iarraidh dul thar lear má bhí sé ar intinn aici ginmhilleadh a fháil ansin, sa chás nach raibh an toircheas ag cur a sláinte i mbaol. Agus an fhoclaíocht atá á moladh sa chás sin, léifidh mé é: “Ní theorannóidh an fo-alt seo saoirse chun taisteal idir an Stát agus stát eile”. Chuirfeadh an fhoclaíocht atá á moladh ag an Rialtas ar chumas aon duine an tír seo a fhágáil ar chúis ar bith, ach sa chás speisialta a bhfuilimid ag déileáil leis anseo, chuirfeadh sé ar chumas aon bhean an tír seo a fhágáil le haon choir leighis, nach bhfuil ar fáil sa tír seo agus atá ar fáil go dleathach sa stát ina bhfuiltear, a fháil.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  Cén fáth go bhfuil difríocht idir an leagan Gaeilge agus an leagan Béarla?

[43]Mrs. Geoghegan-Quinn: Information on Máire Geoghegan-Quinn  Zoom on Máire Geoghegan-Quinn  Ní ghlacaimse leis go bhfuil difríocht idir an dá leagan ach braitheann sé sin, b'fhéidir, ar Ghaeilge dhaoine nó ar chanúintí daoine. Chomh fada agus a bhaineann sé le cearta faisnéise is é an fhoclaíocht atá sa Bhille féin agus arís luaim anocht iad:

Ní theorannóidh an fo-alt seo saoirse chun faisnéis a fháil nó a chur ar fáil sa Stát maidir le seirbhísí atá ar fáil i stát eile ach sin faoi chuimsiú cibé coinníollacha a fhéadfar a leagan síos le dlí.

Luíonn sé le ciall — agus éinne a chuala mé ag caint anseo ó thús na díospóireachta, ceapaim go n-aontódh siad liom — más ceadmhach dul thar sáile le ginmhilleadh nó aon ghnás dleathach eile a fháil, nach ceart aon eolas faoi na gnásanna sin a cheilt sa tír seo. Maidir leis an cheist ar a dtugtar an phríomhcheist, níl aon athrú ar alt 40.3.3º de Bhunreacht na hÉireann. Ní mhaolóidh na leasuithe atá á moladh anois ag an Rialtas an chosaint bhunreachtúil atá ar fáil don bheo gan bhreith. An fhoclaíocht atá i gceist anseo ag an Rialtas, léifidh mé arís é:

Beidh sé aindleathach beatha gan bhreith a fhoirceannadh mura rud é gur gá an foirceannadh sin chun beatha, ar leith ó shláinte, na máthar a shábháil i gcás breoiteacht nó neamhord a bheith ar an máthair is cúis le baol réadach, substaintiúil dá beatha nach baol féindíothaithe é.

Tá athrú i gceist sa mhéid is go bhfuil an Rialtas anois ag léiriú a n-imní faoi chás na mban agus ag cur cothromaíochta san áireamh freisin. Tugann an leasú bunreachtúil seo, mar a dúirt mé leis an Teachta Ó Higgins ar an teilifís aréir, cosaint agus ceartas. Tá cosaint ann do bheatha na mban agus tá ceartas acu maidir le cóir iomlán leighis sa chás gur léir go bhfuil a mbeatha i mbaol. Tá sé léirithe cheana féin ag an Taoiseach istigh sa Teach seo agus taobh amuigh de go bhfuil sé in aghaidh an ghinmhillte, agus tá an Rialtas in aghaidh an ghinmhillte, agus ní mhaolaíonn ná ní laghdaíonn an fhoclaíocht atá molta anseo sa Bhille ar aon bhealach an chosaint a thugann an Bunreacht don bheo gan bhreith.

[44] Is é atá i gceist anseo againn ná a admháil go gcaithfimid, sa Bhunreacht, cothromaíocht a shocrú idir ceart na máthar chun beatha agus ceart an bheo gan bhreith chun na beatha freisin. Is é atáimid ag cur os comhair an phobail ná, nuair atá baol substaintiúil ann do bheatha na máthar mar gheall ar easláinte, gur ceadmhach do dhochtúirí deireadh a chur leis an toircheas. Is éard atá an Rialtas dáiríre ag iarraidh ar an bpobal anois ná an t-alt bunreachtúil, a chosaíonn ceart beatha na máthar agus an beo gan bhreith a fhágáil mar atá siad, ach ráiteas eile a chur leo ag rá, má bhíonn baol tromchúiseach ann do bheatha na máthar mar gheall ar easláinte, mar a dúirt mé cúpla nóiméad ó shin, go dtabharfar cosaint dá beatha, fiú má chailltear an ghin dá bharr sin. Is é an rud is tábhachtaí ná go mbeadh mar aidhm nó mar sprioc leis an gcóir leighis i gcónaí, beatha na máthar a chosaint, agus sa chomthéacs ina bhfuil baol substaintiúil dá beatha, go gceadófaí é.

Tá roinnt cásanna — ní cuimhneach liom anois ar luaigh an tAire Dlí agus Cirt iad, sílim go mb'fhéidir gur luaigh, ach is fiú iad a lua arís — mar shampla, rith fola: uaireanta, sa chás sin, ní féidir beatha na máthar a shábháil gan deireadh a chur leis an toircheas; galar croí; bíonn cásanna ann ina gcaillfí bean thorrach a raibh drochghalar croí uirthi agus gurbh é an t-aon bhealach lena beatha a shábháil ná deireadh a chur leis an toircheas; ailse bhroinne: más gá an bhroinn a bhaint as bean cuirtear deireadh leis an toircheas dá bharr sin; drochailse chíche, i gcás go mbeadh címeteiripe, nó obráid nó raidtheiripe i gceist, d'fhéadfadh an comhairleoir leighis a mheas nach bhfuil aon rogha ann ach deireadh a chur leis an toircheas mar nach bhféadfaí an chóir leighis a sholáthar ar aon bhealach eile nó go mbeadh sé ró mhall fanacht nó go saolófaí an leanbh. Cásanna ar leith iad seo, agus nuair a bhí mé ag caint i mBéarla ar ball beag dúirt mé é sin, ach ní chreidim gur cheart dúinn iad a fhágáil gan déileáil leo díreach mar nach dtarlaíonn siad do chuile bhean, agus aontaíonn na dochtúirí ar fad atá á lua sna nuachtáin go dtarlaíonn siad, gur féidir [45] leo tarlú agus go dtarlóidh siad sa todhchaí.

Mar gheall air sin, creidimse go bhfuil sé fíorthábhachtach go mbreathnódh an Rialtas air sin, go nglacfadh siad sin ina gcloigne agus iad ag cur leasú den sórt seo faoi réir agus go mbeadh sé clúdaithe in aon leasú a chuirfí ós comhair an phobail.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  I will not make any apologies for bringing a touch of anger and emotion to this debate. I am deeply angered by the statements of the Minister for Justice in the House yesterday who, once again — similar to actions taken by him and his colleagues in 1983 — is trying to pigeonhole people in this very controversial debate. Who are the extremists with the extreme views to whom he referred in his speech yesterday? Is he referring once again to concerned women who have expressed their horror and offence at certain terminology in the wording of the Twelfth Amendment? How dare this male Minister attempt to categorise women — or indeed anybody — who suggests that the wording is inaccurate and can, therefore, be pigeonholed into one extreme view? Do we not have the history of 1983 to assist us in our assessment that Fianna Fáil got the wording wrong? Why should we trust them again in 1992?

I wish to refer to the editorial in the Irish Medical Times of 9 October last because it is salutary to remind ourselves of how we come to be discussing this matter again today. The article states:

It is not reassuring to note that those who are most adamant that this or that text be adopted so as to solve the problem were among the most vociferous who argued a decade ago that the wording of Article 40.3.3º of the Constitution would effectively rule out abortion in Ireland forever. Then along came Miss X and the Supreme Court ruling. That ruling, if it did anything, significantly dented the case of those who argue that there is a group of words which, if found, can copperfasten this or that view on abortion. [46] Whatever the final text or the forthcoming referendum, it seems perfectly safe to predict that it will not do what its protagonists insist it will do and we will be back wrangling over the issue.

In the last two days four Government Ministers have made speeches. Consistently, the Minister for Justice, the Minister for Health, the Minister for Women's Affairs and the Minister for Transport and Communications, Deputy Geoghegan-Quinn, have assured us that, in absolute terms, they have got it right this time. I should like to remind Deputy Geoghegan-Quinn of what she said in 1983. I will also remind her of what Deputy O'Hanlon, Deputy Woods and others said. In the Official Report, column 494 of 17 February 1983, Deputy Geoghegan-Quinn said:

People ask why there is a necessity for an amendment to the Constitution. As it now stands the Constitution does not contain any specific protection for human life before birth and only by such an amendment can we be certain that the existing ban on abortion will not be removed as a result of action in the courts.... However, a change in the law could come through the courts without the people or their elected representatives being consulted in any way. Abortion could become legal as a result of a decision by the Supreme Court. As we know, sometimes to our cost, there need not be a unanimous decision of the court. Three out of five judges would be sufficient.

At that time Deputy Geoghegan-Quinn made the argument that the 1983 amendment would ensure that no court action would ever allow abortion. How wrong she was. On the same date, column 469, Deputy O'Hanlon said:

Fianna Fáil believe the wording we put forward is correct and nothing that has been said has convinced us that we should alter that view.

As reported at column 470 he exhorted the Taoiseach to gather his courage, honour his commitment, hold the referendum [47] on the wording presented and give the people an opportunity, in the most democratic way, to enshrine protection for the unborn child in our Constitution. How hollow those words now sound. On 9 February Deputy Woods, the then Minister for Health, said that the thorough consultations that took place before the wording was finalised made it a model for constitutional change for the future. What a model. Deputy Woods gave the impression at the time that there had been such widespread consultation there was no danger the wording would do what Fine Gael warned against. On 27 April — column 2219 of the Official Report, the then Minister for Justice Deputy Noonan, said:

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?

It is important to remind ourselves, by quoting those excerpts from 1983, how certain Fianna Fáil were at that time that what they were doing was right. It has been proved that there are no absolutes in this case. Let us not have the Minister for Justice, Deputy Flynn, drawing himself up to his full height of six foot four inches and telling us that he now has it right, that he can now play God and present the country with a set of wordings which will not have any side effects.

It is clear that 92 per cent of the membership of this House, particularly the Minister for Justice, will never have to face the trauma of an ectopic pregnancy; they will never have to face a decision, with their doctor, as to whether their uteri should be removed because of cancer, which means facing the loss of one's womanhood and the growing baby inside. The Minister will never have to face a decision, with his doctor, in that regard or lie on a bed dangerously ill [48] while two doctors argue whether the treatment needed is to save his health or his life.

There is more confusion and obfuscation on the part of the Government. Deputy Geoghegan-Quinn in her speech said: “Putting it more bluntly, pregnant women will not be denied medical or surgical treatment necessary”— one would expect the next words to be “save their lives”— but she says “necessary to protect their health”. I thought the whole point of Minister Flynn's speech yesterday was that they were not writing into our Constitution anything that was only being done to protect women's health. However, we now have the Minister for Tourism, Transport and Communications, Deputy Geoghegan-Quinn, trying to confuse the issue by pretending to women that that protection for their health is included in the wording before the House. Again, we have more obfuscation on the part of the Government.

An examination of the wording in the Bill published today on the three ballot papers shows that the wording at the top of the white ballot paper will read, “Right to Life”. That is a gross distortion, a travesty, and a manipulation of the public by the Fianna Fáil element of the Government — I assume they wrote those words. Of course the substantive wording has an element of right to life and an element of saving life in it but use of the terminology “right to life” is clearly a Government effort to pretend to the people whom they know are criticising them that the amendment does not allow for direct termination if a woman's life is at risk. What is it about Fianna Fáil spokespeople that they find their throats seizing up, that they are not able to answer a simple question when put to them. Does this Amendment allow a doctor to terminate a pregnancy if a woman's life is at risk? We never get a straight answer to that question because for some reason Fianna Fáil Members cannot say “yes” to the amendment allowing termination in such circumstances. The Government are afraid that if they answer yes to that question they will not then be able to argue the [49] correctness of allowing a mother's life to be saved by terminating her pregnancy. That is another way in which the Government are trying to fool the people.

I should like to refer to the process adopted in the past ten days. I have something to say to the Taoiseach on this. He offered the Opposition leaders a very short time to examine wording which had taken six months to prepare. It is said that despite the fact that a subcommittee had been set up little or no work was done for many of those months. The effect of the words produced gives truth to the rumour that there was a rush in the end to produce a wording.

There was a thread of consensus running through the submissions presented to the Taoiseach by the Fine Gael Party, the Labour Party, Democratic Left and the Progressive Democrats. That thread of consensus was based on the deletion of the phrase, “as distinct from the health”. The Taoiseach made an offer of openness; he said that his door was open so that consensus between party leaders might be reached. Why did the Taoiseach not at the very least take up that thread of consensus and delete those words? It strikes me that the Taoiseach refused to listen not only to the people he had invited into his office but also to the many interest groups, particularly women's groups, that had been voicing such concern and had found the words proposed to be insulting and offensive.

I should like to tell the Taoiseach that the lives of Irish women are not for sale, abuse or use by him and his unscrupulous party. The cavalier way that the Government decided to treat Irish girls and women is objectionable. The Government seem to have taken the attitude that our women should kneel down and thank the Taoiseach very much for all he has done for Irish women, that women should be very grateful and should allow the Government to make life and death decisions on their behalf. That theme has run through speeches by Government Members.

Last night Deputy Tom Kitt, Minister of State with responsibility for women's affairs, spent most of his time outlining [50] what the Government has done for women — almost as if to say, “Are you not very glad that we have done all of this for you and, why are you now complaining about this issue?”. There is an attitude creeping into the debate that women should be grateful for what the Government has done for them and that if the Government could do anything else women would be very grateful.

Irish women are part and parcel of our society; they represent more than 50 per cent of the population, and they do not have to feel guilty or selfish in insisting on their right to full medical treatment if their lives are at risk or if there is some danger to them and their future health and life during a pregnancy. The Government asks us to pat them on the back because they are doing an “OK job”. The Government are not doing “OK”.

It is clear to anyone who has analysed the past ten days in Irish politics that the Taoiseach's invitation to the Opposition party leaders was no more than a cynical exercise in pretence. That is evidenced by the unrealistic deadlines set—48 hours at first and then a few more days after that. It is clear that the Taoiseach was hellbent on proceeding along his own path; all the evidence is there to support that. Now the Minister for Justice, and the Taoiseach, have compounded their lack of respect for the Irish people by announcing in a threatening way — and it does not matter how much they try to sanitise the manner in which the anouncement was made, it was made in a threatening way — that legislation is being prepared to implement the X case judgment and that such legislation will be published during the campaign.

That announcement begs the question: if it will be possible to produce legislation during the campaign why is it not possible for the Taoiseach to accede to the request of Fine Gael that he produce legislation on the current wording before it is put to the House and the people? If it is possible, as the Taoiseach seemed to imply, to produce legislation on the X case — a line of action the Taoiseach seemed to favour six months ago — without bringing in abortion on demand, and I am [51] perfectly willing to accept that the Taoiseach does not want to do that — why did he not take that action on the substantive issue rather than make provision for a referendum? If it was possible to use the production of legislation as a type of threat before we vote on 3 December, why was the Taoiseach not able to present to the Opposition parties and the people a formula that tightened up on the X case judgment, if that is what he wanted to do, and then use that to phrase a constitutional wording that could be put to the people? That issue begs the question about the Taoiseach's bona fides in asking the Opposition parties to talk to him.

All are agreed that the travel and information elements of the X case have to be handled by way of constitutional referenda but the Taoiseach, in announcing the legislation he intends to publish during the campaign, has thrown doubt on whether the referendum on the substantive issue is needed. I wish to say to the Taoiseach — I hope he is listening to this debate because it is important he hears what is being said — that this is not some kind of childish game we are engaged in. We are not dealing with a group of children who can be warned that the bogey man will take them away if they do not eat their vegetables. We are dealing with a serious life and death issue, and to use the big stick of threatening legislation is nothing but a deeply offensive and cynical exercise that will cause further confusion.

I now wish to make a very serious allegation. The Taoiseach, by his unwillingness to accept and give consideration to realistic suggestions made by Fine Gael — and, indeed, other Opposition parties — to produce legislation before the vote on 3 December to clarify what we are voting for, runs the risk of subverting the Irish people's well-known call that there be no abortion on demand because another Supreme Court decision could have that effect. Is the Taoiseach willing to run that risk? It seems he is.

It is ironic that the people who demanded, in good faith — I am not [52] about to recognise their good faith now — a referendum in 1983 are the self-same people who have to take the blame for what happened in the X case. They opened up the possibility of putting into our Constitution an amendment that clearly will not cover all contingencies. They did not listen in 1983. It took a great deal of courage on the part of Deputy Garret FitzGerald — anybody who listened to the Deputy in the debate last night would have heard him admit this — to admit that he rushed into accepting the 1982 wording from Fianna Fáil but as soon as he recognised the dangers in it he pulled back. It took a lot of courage to do that. I can guarantee that Fianna Fáil would not have that courage but why can they not learn from such courage? It is important to put again on the record of the House what Deputy Shatter said on 17 February 1983, column 533 of the Official Report. He said:

The irony is that I have no doubt, not merely from the interpretation the Attorney General has given but from the other interpretations that can be validly taken from the amendment, that if it in its present form becomes part of our Constitution it will essentially secure a constitutional judgment in the not too distant future requiring the House to enact legislation to permit women to have abortions.

Deputy O'Hanlon commented on 17 February 1983 column No. 466 of the Official Report:

From my own experience as a medical practitioner, from what I have read in literature and from what I know from my colleagues. I do not believe it is necessary to introduce abortion for the medical cases which are quoted by those who are against the amendment because they want abortion legalised.

What Deputy O'Hanlon referred to in that extract are the very things that the Government are now saying, at least we hope they are saying it — that women will be allowed to have a termination if [53] their lives are threatened by those medical conditions. It was Deputy O'Hanlon, a medical doctor, who said he did not believe it was necessary to introduce abortion. He is now a member of a Government party that is doing precisely that, again, it highlights the weakness of the arguments in 1983.

I should like to refer further to what Deputy Shatter said. At that time I suppose Deputy Shatter was the nearest we had got to a prophet because it was as if he was able to foresee what happened in 1992. He stated column 580 of the Official Report of 17 February 1983:

If the intention of the article is to protect the equal right to life of the mother, one must ask what that means. Does it mean that if a mother's life is seriously endangered by a pregnancy, we would allow the pregnancy to go through a full term and possibly keep the mother alive on a life support machine; or does it mean something more than just preserving a physical existence? Has the quality of life some relevance to this argument? If it does, if included in the Constitution, would this Article permit abortions to take place where not only a woman's physical health but her mental health was endangered?

Shades of the X case.

Could it not equally be argued that the right of the mother to life requires a right to a proper and viable life in mental good health? Is that not valid argument? If that were the final judicial interpretation of this amendment, then this amendment would permit abortions to be carried out where a mother's mental health was said by psychiatrists to be endangered as a result of her becoming pregnant. I do not believe that that is an intent on the part of the drafters of this Article. The interpretations to which the Attorney General has referred, the worries which the Minister has expressed and the additional possible interpretations of this Article in the area of abortion which I have given all [54] have validity. There is not a Member of this House who can categorically state that if this matter were dealt with before our courts this year, next year, or in 20 years time, one of these interpretations to permit, and indeed constitutionally require, abortion would not be accepted. It is not something that could be constitutionally required under the existing Constitution, without this Article.

Deputy Shatter foresaw precisely what was going to happen sometime in the future — the future happens to be 1992. Almost word for word Deputy Shatter's comments at that time have come to pass. I want those words to remain in the minds of Fianna Fáil so that they can recognise that standing up here and being absolutist about anything is not the case to make on this issue.

May I have an indication of the time remaining at my disposal?

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  The Deputy has unti 1.13 p.m.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  I should like to allow some time for Deputy Barnes.

An Leas-Cheann Comhairle: Information on James C. Tunney  Zoom on James C. Tunney  Is that agreed? Agreed.

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  I should like to deal very quickly with the phrase that has caused such anger and anguish as distinct from the health issue. The speech of the Minister for Justice, Deputy Flynn, is littered with inconsistencies and non sequiturs. He tries to make the argument — and again he thinks he is taking the middle ground — to those who say that the words “as distinct from health” should be omitted, that somehow by removing those words, open abortion would be allowed totally on health grounds. I do not know how he can say that. It is clear from reading the amendment, with the exception of those words, that only in the case of substantial risk to the mother's life would termination be available. I should like to quote from the speech of the Minister for Justice as follows:

[55] The suggestion that the words “as distinct from the health” should be omitted from the proposed amendment really boils down to this — that it should be possible to terminate the life of an unborn child where there is no risk to the life of the mother.

I still have not managed, even after a night's sleep, to understand how he arrived at that interpretation. It is clear from the discussions I and other Fine Gael colleagues have had with both the medical and the legal professions that those words, at the very least, are superfluous and supernumerary and are unnecessary in this amendment. No matter what any Minister may say I believe these words were put in as a sop, as a way of saying to people that the decisions doctors will make will be made only on the issue of life. Doctors will say that is what they are making their decisions on, that they are making their decisions on the span of a woman's life, that they do not stand over her bed saying — though they may have to do so if this legislation is passed —“this woman has breast cancer, she has undergone a mastectomy”, while another doctor might say: “she must have chemotherapy but there is a risk to the baby”, and yet another doctor might say: “we have saved her life by performing the operation and she does not need the chemotherapy until after the baby is safely born”. But within two or three years' time, the woman may get the cancer back again, and die. The problem is that maternal statistics cease a short time after the baby is born and therefore, will not indicate if, three or five years down the road, the mother may be dead because of not having been given the treatment, during her pregnancy, that could have saved her life. These are the real issues at stake in this debate.

Finally, I should like to refer to the information issue as referred to by the Minister for Health, Deputy O'Connell, last night. In his contribution he began to give us some idea as to what would be involved in the matter of information but that is as far as he went. We are still in [56] the dark. His words appear to differ from those of the Minister for Justice, Deputy Flynn. We need to know who will provide the advice and what resources will be made available. We have only to look at the Rape Crisis Centre to see how little money the Government give them and how they have to fight for it each year. What arrangements will be made for pregnant suicidal girls who need urgent and immediate attention? A number of issues are still unclear in regard to the legislation and the sooner the Minister puts it before the House the better.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  It is perhaps a privilege that we have some women parliamentarians in this House who can express some of the anger and the fears of women outside this House.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  Some of the men can do so, too.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  I pay tribute to the men who do. I am sure my colleague, Deputy Higgins, will agree with me that the reason we are having a debate on this overwhelming and oppressive kind of constitutional amendment, is because we do not have a fair representation as between men and women Members. Before focusing on the legislation before us I should like to put a few matters in context, one of which is the history of abortion.

I wish to ask again a question to which no satisfactory answer has yet been given. The Minister for Justice, Deputy Flynn, has assured us that a referendum on divorce will receive adequate discussion and debate. Despite the fact that legislation was put in place after the referendum on divorce, that the Oireachtas Joint Committee on Marriage Breakdown produced a very full report and that there are models in other countries which have worked, we have been assured by the Minister for Justice that he could not, in conscience, put a referendum on divorce to the people until all the legislation is in place, even if that took two years, which I am sure it will. Am I to take it that it is [57] not seen fit in the case of this referendum, which will have a fundamental effect on the life and health of women and which arises as a result of the earlier botched referendum to put all the legislation in place before it is put to the people? What does this say about the attitude of the Minister and the Government to women? They believe that this issue can be rushed through.

I am sure my colleagues will agree with me that the ironical offer made by our caring and family-centred Taoiseach this morning, when we protested yet again at the lack of time being made available for this debate, that we could sit on Saturday and Sunday, showed a lack of insight and sensitivity to women and men and the protection of life and family values, which the debate is all about. Politicians and everyone who is privileged to be in employment look forward to spending Saturday and Sunday with their families. It is a matter of regret to my colleagues and to me that the reform of this Dáil is so slow that this House sits the most anti-family hours ever. We were told we could sit on Saturday and Sunday, the time we spend with our families, to discuss this important family-centred issue. The Taoiseach should be indicted for making that derisory offer. It is an indication of the insight he has into family values and the kind of support needed for women in the home.

At least during this debate we are able to say the word “abortion” out loud. If we mentioned the word “abortion” during the 1983 debate — I am sure my colleagues will remember this — we were threatened physically and immediately labelled as abortionists.

The debate on the complex issue of abortion in Ireland did not start yesterday. The history of abortion and the attempts to deal with it prove the complexity of this area and highlight the desperation experienced by women about the way they have been treated in regard to this issue. All civilisations and cultures record that women, driven to distraction, have sought abortions or have attempted abortions on themselves, very often with horrifying results. Indeed great numbers [58] of women have died both from childbirth and attempted abortions. Either way, this has been a high risk and painful process for countless generations of women. Even though it was risky, dangerous and life-threatening, women still had babies. The greatest insult to women is that in some way men have to control our murderous intent towards our unborn.

The legalising of abortion in restricted circumstances has led to a dramatic decrease in the number of women who have died or suffered as a result of this process. The present debate is not a conspiracy by fanatical feminists, the World Health Organisation and the International Family Planning Association. Indeed in some countries where contraception and family planning clinics are not allowed there are still horrifying stories about very young women who, because of tribal or community pressure, are mutilated or who mutilate themselves in attempting to get rid of unwanted pregnancies. Some of these young women die and many of those who live are rendered infertile, suffer life-time health problems and have to endure social stigma. I do not think the background to this issue has been taken into consideration by the Government, who have decided blithely to remove the sentence which referred to self-destruction. This shows how little they know about the desperation felt by some women.

Despite the complexity of this issue, the lack of support services for women, the fact that women have the main responsibility for child rearing and the painful experience of the 1983 referendum and its outcome, the Government still insists on repeating the same mistakes and proposing amendments which will end up in both Irish and European courts. There is not much we can be sure of during this debate but we can be sure of that.

Intrusion into the professional relationship between doctors and their women patients will be but one of the effects of this ill-sponsored and rushed referendum. It is shameful that the referenda on the right to travel and the right to information have to be put to the electorate [59] in order to restore to citizens two of their most basic freedoms. The Minister of State at the Department of the Taoiseach, Deputy Kitt, had the audacity to refer to Albania. He should look nearer home first.

Not alone are women very much in the minority in the Oireachtas but the overriding voices of professional and anti-abortion campaigners have attempted to drown out the voices of women and men outside this House. I believe the Irish electorate have grown and matured since the deadly divisive debate of 1983 and will speak out on behalf of women and the groups they represent. I encourage them to stand up and fight for women's right to life. The Minister for Justice, Deputy Flynn, and the Minister of State at the Department of the Taoiseach, Deputy Kitt, referred to such groups. I wish to tell them, and Members on the other side of the House, that criticising this wording is not extreme and is not about advocating abortion on demand. Rather we do not want to add insult to the injury already heaped upon women.

The wording on the substantive issue will not ensure women their integrity. During this debate and the 1983 debate — this is one of the abiding memories of women — women have been disembodied, divided and dehumanised. As has been said by Deputy Shatter and others on this side of the House, if it was attempted constitutionally and legislatively to distinguish between the life and health of men there would be an outcry; they would have justifiable grounds for rejecting such an attempt. However, because this issue relates to women this charade and farce can take place.

It is significant that other moral areas affecting life and death can be given flexibility and justification by men. For example, self-defence, the death penalty and, above all, just wars, are not only justified but at times eulogised. What about the loss of life in such cases? Yet, in the 1983 debate, and again in this one, the underlying thrust of the legislation [60] and the debates surrounding it is that women cannot be trusted. An environment is created which would lead people to believe that women would seek abortions frivolously and thoughtlessly — unless male legislators and Constitutions control women, they would queue up to abort their babies.

The X case, which began the second stage of this tragic run of referenda, has been pushed aside and covered up. The position of a 14-year old girl being made pregnant in circumstances which led her to see suicide as the only alternative is now not even up for debate. In fact, the Supreme Court judgment arising from these tragic circumstances, which recognised the real and substantial risk to her life by her suicidal state of mind, is now to be ruled out, is to be denied acceptance if such tragic circumstances are repeated. The X case is not an isolated and solitary one. The rising figures of reported rapes and cases of incest clearly illustrate that other young girls and women will be violated and expected to carry not just the trauma of that desperate experience, but a pregnancy that may ensue from a terrible act inflicted on them through violence and hatred instead of the loving intimate experience it should be. In the face of all this Government speaker after speaker stood up during this debate and have had the insensitivity and callousness to call this wording “pro-woman” and to accuse women who put their head above the parapet to protest as extremists and lobbyists for abortion on demand. I am amazed at some of the coverage which was given to yesterday's debate which portrayed the speches from the other side of the House as being clever or compassionate. That shows the chasm which exists outside this House with regard to the integrity of women. Women have to sit inside and outside this House and hear their biological and physical bodies taken apart, as rules are drawn up and decisions made about the uterus, ectopic pregnancies and breast cancer. I wonder how men would feel if they were taken apart in this way, if legal and professional decisions about their intimate parts and [61] health were made public and devalued in this way.

This debate is taking place in a vacuum with regard to the real lives and experiences of women. It is taken in isolation from the reasons and desperation that force women to seek abortion. If we really care about the moral dilemma of abortion and the concerted action of all of us to reduce circumstances in which abortion takes place at all levels, there should be a platform of support, services and caring to allow that to happen. Indeed, the Minister for Justice, and other Ministers, should ensure that that is in place before we go to the country with referenda.

In countries such as the Netherlands where there is a mature, honest, open sex education programme highlighting the responsibility of valuing women's and men's sexuality, teaching young people the long term implications of unplanned pregnancies, there is a low level of abortion. The people of that country are informed and trusted, which is something that the politicians opposite consider unacceptable here. What support services do we have here? In a survey published this week by the US Population Crisis Centre in Washington, Ireland ranks last among the world's 29 developed countries with access to birth control. The Republic of Ireland scored 40 out of a possible 100 points awarded on a range of birth control options — even Romania and Poland preceded Ireland with a score of 51 points.

Mr. McCartan: Information on Patrick McCartan  Zoom on Patrick McCartan  What about Albania?

Mrs. Owen: Information on Nora Owen  Zoom on Nora Owen  The Minister of State at the Department of the Taoiseach, with responsibility for Women's Affairs, might know where Albania came in.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  Concern was expressed that many women are being denied access to a full range of family planning options with serious consequences for their physical health and well-being. I join Deputy Owens in asking the Minister for Health to return to this Chamber and give us open information and funding for [62] support services which will be necessary if we are to take a moral high stand and exclude women from the right to make decisions about their own bodies.

Do we support lone parents or unmarried mothers with regard to housing and adequate allowances for themselves and their children? Where is the recognition and the financial reward for a family who take in the child of one of their children? Lone parents — usually women — are denied access to adult education, to training and the VTOS scheme, and we value life, the unborn and woman who, through all those incredible disadvantages and difficulties, bring babies into this world.

Finally, why do we trust our women so little? Why do we trust the moral fibre of our society so little? When will individual members in our society be allowed to judge for themselves, to refer to their own consciences and have open access to information and counselling to allow them to do that? During this debate there must be some acknowledgement of the sacrifices, unstinting generosity, life-long commitment and input of women to their families and children, particularly the mothering role of Irish women which has even ended up as a joke about the “Irish mammy”. The Government should heed our views and those of people both inside and outside this House and have somne conscience about putting a confused and dangerous wording to the people again. Not alone is it undemocratic, it is an an offence against women.

Minister for Industry and Commerce (Mr. O'Malley): Information on Desmond J. O'Malley  Zoom on Desmond J. O'Malley  With your permission, a Ceann Comhairle, I should like to share my time with the Minister of State at the Department of the Environment, Deputy Harney.

An Ceann Comhairle: Information on Seán Treacy  Zoom on Seán Treacy  Is that agreed? Agreed.

Mr. O'Malley: Information on Desmond J. O'Malley  Zoom on Desmond J. O'Malley  Two weeks ago, at the outset of the current phase of the debate on how to deal with the complex, emotive and deeply divisive matter of the correct balance to be struck between the rights of pregnant women and the unborn, I [63] made a plea that the issue be pursued on a political consensus basis. Furthermore, I made clear my own preference, and that of the Progressive Democrats, that the fundamental issues arising in relation to this matter be dealt with by legislation rather than by a further constitutional amendment. I did this because of the sheer complexities of the issues involved, and also because I believe that most people do not want to have to make such a sensitive and complicated decision in this way. Finally, I made this appeal in the context of the deep national, social and economic problems facing the country. Most notably, there is the underlying unemployment crisis; the exacerbation of this problem by the sudden international monetary crisis and the devaluation of sterling; the attendant pressure on family budgets arising in particular from the serious jump in mortgage interest rates and, last, but not least, the delicate situation reached in the Northern Ireland talks against a background of continuing violence.

Without minimising in any way the importance of the issues that arise when considering abortion, I sincerely believe that the great majority of the Irish people want to see their politicians and their Government get on with tackling, unimpeded, those problems I have just listed.

Members of the Oireachtas should not be afraid to legislate in a difficult area like abortion, because it is simply impossible to reduce the matter in all its complexities down to a single black or white proposition to put to the people for inclusion in the Constitution on a yes or no basis.

I deeply regret, therefore, that it has not been possible to maintain the politicial consensus which did exist at the time of the Maastricht referendum and which extended to the less contentious aspects of the matters now before this House. Namely, the need to restore by way of referendum an unequivocal right to travel and the right also to obtain here in Ireland non-directive and supportive counselling and information concerning services that are legal in other countries.

[64] Turning to the so-called substantive issue, I have to say that it is anything but black and white. One has only to take into acount the exchanges already arising in the current debate, and the evidence of many medical practitioners, to realise that various medical problems can arise — and do arise — for a small minority of pregnant women which are not only deeply upsetting and traumatic in their own right, because of the threats they pose to the health and lives of the women concerned, but also because of the heartrending implications they can have for the unborn child which those women are carrying.

I strongly believe that in these exceptional cases, which can derive from various medical conditions associated with cancer, blood diseases or heart problems, or which could be of the outcome of a serious accident, the decision facing such pregnant women and the implications for their unborn, are matters which should be resolved by the unfortunate women affected, with their immediate and closest family members, and their medical consultants.

The traumatic personal decisions and choices when they have to make, should not be made in the context of any country's constitution. I believe too that medical experts have a daunting task in deciding in all conscience and good faith what is the best course of action to take when they are directed principally by a general constitutional statement that is hard to interpret in particular circumstances.

That is why I have urged that these are matters best dealt with by legislation. It is simply impossible to reduce the complexities of the matters before us to a single black and white proposition to be enshrined as a basic principle of constitutional law in this State. On the contrary, we hear, day after day, further cogent argument and examples which demonstrate clearly that this issue should be tackled by way of legislation, thereby allowing some degree of guidance and compassion which cannot be achieved in a single constitutional statement.

There is much in the debate of the last [65] few weeks which is deeply offensive and insulting not only to women who have faced, or might face, traumatic choices relating to their life and health when pregnant, but which has also been very offensive and unfeeling to women in general. In this context I was touched by the comments last week of the chairperson of the Council for the Status of Women, Ms Frances Fitzgerald, when she said that women were angry listening to lingustic contortions on the question of abortion in a debate that frequently did not respect women's own judgment.

Earlier this year, this nation displayed a very real sense of compassion and concern when the High Court granted an injunction to the Attorney General preventing a 14 year old girl, who had been raped and was pregnant, travelling to England to have her pregnancy terminated. That concern stemmed in part from the unacceptable consequences of the 1983 constitutional amendment, which resulted in a legal intrusion into the private and painful trauma of the child and her family in those most awful of circumstances. The High Court decision was based on an interpretation quite different from the solemn assurances given us in 1983 by the proponents of the Eighth Amendment.

The Supreme Court in this instance managed to extricate us as a people from this dreadful situation by deciding that the danger of suicide by this girl was such as to pose a real and substantial threat to her life and, because of this, the court decided to lift the injunction against her. It is of particular relevance that while the Attorney General took the action the State funded the appeal to the Supreme Court by the girl. This surely demonstrates the very difficult position that arises when exceptional cases happen which do not fit a particular formulation contained in the Constitution. We should ask ourselves whether our real concern and our subsequent relief about this girl was related to whether she would commit suicide, or was it an acknowledgment that we as a society were uncomfortable with forcing this girl to [66] go through a full-term pregnancy in the particular circumstances of that case, especially given the fact that she was only 14 and her plight stemmed from being raped?

Clearly, while the vast majority of the Irish people strongly believe that abortion should be illegal, they were willing to entertain an exception in the X case. This was, of course, especially true when it was due to happen in England. However, other types of cases have also been highlighted in the current debate where the mother's health or life can be severely threatened, and where medical intervention necessitates either a direct or indirect termination. Each such case tears at our conscience and forces us into examining the issue in a manner which is no longer black and white, but obliges us to consider the overall balance of rights in each such case.

In the 1983 40.3.3º Amendment the people were attempting to strike a balance between the rights of the mother and the unborn. This balance in turn has to be considered in conjunction with Articles 40.3.1º and 40.3.2º which impose an obligation on the State to vindicate the life and personal rights of its citizens, including, of course, pregnant women.

In the X case the Supreme Court adjudicated on this balance of rights. They decided that where there was a real and substantial risk to the life of the mother, she had a right to have an abortion. They did not confer the right to an abortion on any other basis. They did not grant the right to an abortion in cases of rape or incest. They did not grant the right to an abortion where the mother was a minor. They restricted the right to an abortion to cases where, on the evidence, there was a real and substantial risk to her life.

There are plenty of lessons to be learned from the X case. One is that the only interpretation of words in the Constitution that counts is the view formed by the Supreme Court. Ministers, Deputies, doctors, clerics and lawyers can in all good faith give their view of what certain words mean, but their interpretation [67] has no standing whatever. Words can be interpreted in an unexpected way. If they are, if a mistake is made it can be conveniently corrected if it is in legislation. It is extremely difficult to correct if it is in the Constitution.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  Indeed.

Mr. O'Malley: Information on Desmond J. O'Malley  Zoom on Desmond J. O'Malley  Surely the most fundamental lesson to be learned from the X case is that hard case exceptions do occur. Surely this should cause us to pause and ponder the wisdom of our actions in trying to reduce the whole complex question of the balance of rights between a pregnant woman and her unborn to a single constitutional statement.

Meanwhile, of course, if we examine the proposed wording in the Twelfth Amendment of the Constitution, it is clear that some form of limited abortion is still envisaged. Stating that it shall be unlawful to terminate the life of the unborn, unless certain conditions exist, implies that it will be lawful to terminate the life of the unborn if particular conditions do exist.

It is my strongly held view, and that of the Progressive Democrats, that inserting a new provision in the Constitution of Ireland is not the proper mechanism to attempt to regulate such exceptional situations.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  It is the view of a lot of people.

Mr. O'Malley: Information on Desmond J. O'Malley  Zoom on Desmond J. O'Malley  Indeed, looking back on the Dáil debate leading up to the introduction of our Constitution we can see that Eamon de Valera had a clear view as to what should or should not be in the proposed Constitution.

As President of the Executive Council he stated on 11 May 1937, at columns 62 and 63 of the Official Reort, in relation to that part of the Constitution which deals with fundamental rights, Article 40 which is the subject of these proposed referenda, and I quote, that “You have the natural conflict between the rights of the individual and the rights of the [68] community as a whole”. He went on to elaborate:

You cannot, however, state those things absolutely. All you can do is to give the fundamental principles; to state them clearly and correctly, and leave it to the sense of justice, the goodwill of the community, to work in accordance with the spirit of the declarations.

I share this view of the Constitution. It is wrong to seek to burden our basic law with detailed controls which ought to be the responsibility of the Legislature.

Article 40 of the Constitution covering fundamental rights should confine itself to a positive affirmation of basic rights of the individual, with the necessary regulations controlling or limiting such rights demarcated by legislation. In that context let us look at what happened in 1983. The 1983 Amendment to Article 40 inserted a requirement that the life of the unborn be protected. This was a laudable aspiration. But it was a right qualified in its formulation by the necessity to have and I quote: “due regard to the equal right to life of the mother”.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.


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