An Bille um an gCúigiú Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le Linn Toirchis a Chosaint), 2001: An Dara Céim. Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Second Stage.
Thursday, 25 October 2001
Dáil Eireann Debate
This Bill provides for constitutional and legislative reform in relation to the protection of  human life in pregnancy. This proposal, which represents the first legislative response to the legal issues which remain unresolved since the X case in 1992, represents a fair, reasonable and compassionate approach.
Abortion is a sensitive issue for society and it is heartening that the response to the proposals to date has been of a measured, mature and thoughtful nature without, thankfully, the rancour that characterised the debates in 1983 and 1992.
It is very important to acknowledge that laws alone cannot deal adequately with the often tragic realities of crisis pregnancy in modern society. On more than 6,500 occasions in the past year alone, women giving an Irish address have had abortions in Britain. That is about 18 women every single day of the year and many Irish women have made this journey in previous years also. The difficult situations faced by these women and the often lonely decisions they have made demand a sensitive, understanding and compassionate response from us all.
We must, by every reasonable means at our disposal, strive to reduce the incidence of crisis pregnancy. Law is only part of the picture. Education, advice, care and compassion are in many ways much more important. That is why a comprehensive approach is being adopted on three different levels: constitutional, legislative and caring, practical, intervention.
I accept that the proposals to address the constitutional and legislative issues will have little, if any, impact on the situation of those Irish women who choose to travel abroad for abortions. I also acknowledge that a comprehensive range of compassionate, supportive and non-judgmental services is vital in order to provide women with the supports they need to deal with a crisis pregnancy and to make decisions about the options open to them. It is for these reasons that, having considered the recommendations of the All-Party Committee on the Constitution, I have established the Crisis Pregnancy Agency which will have the task, in consultation with Government and other statutory and non-statutory agencies, of drawing up a national strategy to address crisis pregnancy and oversee its implementation. I have appointed Ms Olive Braiden, who has a distinguished record in the fields of human rights and women's health issues, as chairperson of the agency and I am in the process of appointing the management board. Initial staff have already been seconded from my Department to enable the agency to become operational. The Government is providing funding of 6.5 million for the agency in 2002.
The prevention of crisis pregnancy in the first instance will be a primary task of the agency. Preventative issues concerning education of young people and adults, as well as services appropriate to their needs and lifestyles, will be addressed. Much concern has been expressed about the need to make women more aware of their options should they have a crisis pregnancy, and to enable  them to consider these carefully and to assist them before they make decisions about the course of action they want to take. This is another major area to be addressed.
Women who have had an abortion, either recently or some time ago, have particular needs also and this is another area which the agency will be asked to address. We need to ensure that they are treated with compassion and understanding and that both their emotional and physical health needs are attended to.
The establishment of the Crisis Pregnancy Agency will play a major role in the development of co-ordinated, responsive and appropriate services. The Government hopes that over time it will be possible to reduce the incidence of unwanted pregnancies among Irish women and ensure that women who find themselves in this situation will have available to them the widest possible range of assistance to help them deal with their situation.
I will now set out briefly the constitutional and legal background to the proposals in the Bill. In 1983 the people decided by referendum to insert into the Constitution Article 40.3.3, which declares:
the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.
No laws were ever enacted on foot of this amendment and the provisions in the Offences Against the Person Act, 1861 remained the basic law in relation to abortion. This left open the possibility that Article 40.3.3 would have to be interpreted by the courts as apart from the 1861 Act there was no legislation which made clear what was and was not permissible under the law should there be a potential conflict between the right to life of the mother and that of the unborn.
As Members will be well aware, subsequent to the insertion of Article 40.3.3, cases have arisen in the course of which the substantive issue of abortion has been considered by the courts. The general circumstances of these cases will be well known to Members and do not require reiteration. In the X case of 1992, a majority of the members of the Supreme Court held that if it were established as a matter of probability that there was a real and substantial risk to the life as distinct from the health of the mother, and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful. The stated risk to the mother's life in this case arose because she had threatened to commit suicide if she had to continue with the pregnancy.
Some of the dicta of the majority in the Supreme Court also indicated that the constitutional right to travel could be restrained to prevent an abortion taking place in circumstances where there was no threat to the life of the mother. The right to travel did not take pre cedence over the right to life. In November 1992, constitutional amendments were proposed to deal with different aspects of the X case judgment. On the substantive issue, the wording put forward by the Government was intended to recognise that there could be circumstances where, in order to protect the life of a pregnant woman, medical intervention was necessary which could result in the death of the unborn child but that these circumstances did not include the risk of suicide. The people rejected this amendment.
In the C case of 1997, the High Court accepted that where evidence had been given to the effect that the pregnant young woman involved might commit suicide unless allowed to terminate her pregnancy, there was a real and substantial risk to her life and such termination was, therefore, a permissible medical treatment of her condition where this was the only means of avoiding such a risk.
Mr. Justice Geoghegan also made remarks obiter dicta about the issue of travel. He believed that a court, in considering the welfare of an Irish child in Ireland and considering whether on health grounds a termination of pregnancy was necessary, must be confined to considering the grounds for termination which would be lawful under the Irish Constitution and could not make a direction authorising travel to another jurisdiction for a different kind of abortion. The amended Constitution did not, he said, now confer a right to abortion outside of Ireland. It merely prevents injunctions against travelling for that purpose.
There has been a view that, arising from the judgment in the X case and subsequently the C case, there is “unfinished business” requiring a response in terms of constitutional or legislative change, or both.
In the light of the difficulties which have surrounded previous efforts to address the issues to which I have referred, the Government has devoted considerable effort to facilitating and informing public debate about them. The Bill I am bringing before the House today represents the latest step in this process. We have engaged in a careful and logical process designed to explore the issues, to enable the many people and organisations who wish to express their views on the protection of pregnant women and of unborn human life in pregnancy to be heard and to consider ways of moving forward which will, we hope, command the support of the people. While it may never be possible to satisfy every point of view or to devise a solution acceptable to all, the Government has sought, by fostering a reasonable, calm and structured national debate, to develop a consensus on how the issues arising from the X and C case judgments might finally be resolved.
In the first instance the Government decided in 1997 that a Green Paper on abortion would be prepared. This document was published in September 1999 and was welcomed by many interests as a clear and balanced document, setting out as  it did the history of the issues and the different arguments advanced and discussing the principal constitutional and legislative options. The Government referred the Green Paper to the All-Party Oireachtas Committee on the Constitution, chaired by Deputy Brian Lenihan, for consideration. The all-party committee embarked on a detailed process of consultation, first seeking submissions on the options discussed in the Green Paper. Over 100,000 submissions were received from individuals and organisations. Subsequently, the committee held hearings at which the issues were explored in detail with many of those who had made submissions, including representatives of the medical profession and of the churches, attending. The all-party committee's proceedings and report, published in November 2000, were generally agreed to be fair, balanced and of great value in educating and forming public and political opinion.
The Government has carefully examined the different proposals put forward by the all-party committee and the approach being adopted is based on one of the three possible approaches identified by the committee. Stated briefly, it will protect best medical practice while providing for a legislative prohibition on abortion and underpinning such legislation with an amendment to the Constitution. The Government is satisfied on the basis of all the expert medical evidence presented and discussed that there are life-threatening conditions or illnesses, either associated with pregnancy or exacerbated by pregnancy, in which in order to save the woman's life it may be necessary for doctors to consider taking action in the course of which or as a result of which unborn human life is ended. The Government does not believe that a risk of suicide is a valid basis on which to provide for medical intervention.
The experience in the 1992 referendum attests to the difficulty of providing in a relatively short constitutional provision for a clear prohibition on abortion, while ensuring that there is no obstacle to pregnant women receiving all the care and treatment they need. The Government has concluded that there is no simple sentence or paragraph that can be inserted into the Constitution which, by itself, would amount to a balanced, effective, legal response to the complex medical and legal issues which surround the protection of human life in pregnancy. Instead the Government has decided that the proper place to strike that complex balance is in legislation, not in the Constitution. The proposals contained in the Protection of Human Life in Pregnancy Act provide a practical legislative response to the issues raised by the 1983 amendment and by the “X” and “C” cases. They will not satisfy the wishes of those at different ends of the spectrum. The proposals are aimed at achieving a reasonable compromise which will enjoy the support of the middle ground of opinion and, I hope, be seen by the other groups as an honest and genuine attempt to pro vide an acceptable and workable solution to this complex issue.
It has been suggested that to do nothing in relation to abortion is still the best option. However, in the Government's view, the terms of Article 40.3.3 and the Courts' interpretation of that Article demand a legislative response from the Oireachtas. Indeed in 1992 one judge of the Supreme Court criticised the Oireachtas for its lack of action in this regard. At present the only real defence against widespread use of the X case as a basis for “social abortion” in Ireland is the ethical consensus in the medical profession. It must be remembered, however, that those outside the medical profession are not subject to that ethical code and with, for example, the development of drugs which can bring about an abortion without medical intervention, the current protections afforded to the unborn cannot be regarded as adequate.
Others have argued for legislation without further constitutional change or underpinning. However, the outcome of the X case does not afford a satisfactory starting point for future legislation. To legislate for the decision in the X case and, in particular, to make complex legal provision and control for the suicide risk as a ground for abortion, could open the way to freely available “social abortion” in Ireland.
The Government, having considered all the options, is opposed to permitting any intervention which could or would result in the death of the unborn child other than where the mother's life is at risk from a medical condition, excluding a risk of suicide. I believe a majority of Irish people are opposed to any lessening of the protection currently afforded to the unborn and I have no doubt that any proposal to remove Article 40.3.3 from the Constitution, which would be necessary if it were proposed to legalise abortion, would fail.
The purpose of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill is to provide a secure and effective constitutional basis for a legislative approach to the protection of human life in pregnancy. The proposals are designed to ensure that women can continue to receive all necessary medical treatment during pregnancy, while at the same time ensuring maximum protection of the unborn and maintaining a clear prohibition on abortion.
The mechanism proposed is that a referendum will be held to approve the insertion into Article 46 of the Constitution of the text of proposed amendments to Article 40.3 of the Constitution. These are (i) a new subsection 4º in Article 40.3 to provide that the life of the unborn in the womb will be protected in accordance with the Protection of Human Life in Pregnancy Act, 2002; and (ii) a new subsection 5º in Article 40.3 to provide that any future proposal to amend or repeal the Protection of Human Life in Pregnancy Act, 2002 will have to be approved by the people in a referendum.
 If the people accept the proposal, the amendments to Article 40.3 will have effect only if a law containing the text of the envisaged Protection of Human Life in Pregnancy Act is enacted by the Oireachtas within a period of 180 days, otherwise the amendment in its entirety is nullified.
The mechanism of making a constitutional amendment conditional on a later legal development was successfully used in the referendum on the Good Friday Agreement in 1998. The proposed constitutional changes on this occasion are designed to ensure that the legislation has a sound constitutional basis, that the careful balance it strikes will not be subject to legal challenge from either side of the argument and to give people the reassurance that they will be consulted if change is proposed in the future.
It has been suggested that because Article 46.4 of the Constitution states that a proposal for a constitutional amendment shall not contain another proposal, the mechanism being used is not valid. Any such assertion is incorrect and is based on a misunderstanding of Article 46.4 of the Constitution. There is only one proposal in the Bill to amend the Constitution, namely, to insert into the Constitution the text set out in the First Schedule. The text of an envisaged criminal statute, as set out in the Second Schedule, is not a proposal within the meaning of Article 46.4 of the Constitution. The Bill to amend the Constitution does not propose that the Schedule containing the envisaged legislation should in itself have any legal effect. A “Yes” vote in the referendum on the Bill to amend the Constitution will give effect only to the constitutional amendments involved. The only way in which the terms of the legislation on the protection of human life in pregnancy can become law or have any effect is through a separate, subsequent decision by the Oireachtas to enact another Bill.
It is precisely because it is not possible to propose a criminal law and a constitutional law in the same Bill that the present amendment was drafted as it is. It was drafted deliberately to avoid containing two proposals, and it does not contain two proposals. The legislation, the text of which is set out in the Second Schedule, is not being enacted at this stage; all that people are voting for is to accommodate that legislation in the Constitution if the Oireachtas, at a later stage, passes it into law.
It has been claimed that the current proposal is in effect the same as that of 1992 and questions have been asked as to why it should be acceptable to the people now, when they rejected it in 1992. In 1992, the people voted on the proposed wording of the constitutional change itself, but not on the legislation which would have followed had the amendment been passed.
On this occasion the Government is committed to allowing the people to decide not only on the principle but also on the detail of what is proposed. They have a right to be consulted on the fundamental issues involved in the abortion issue,  and the amendment process set out in this Bill recognises that fundamental right.
The legislation envisaged has been published and will have been debated before the referendum so that the electorate know exactly what is proposed. The legislative mechanism, as I explained earlier, allows for a balanced, effective, legal response to the complex medical and legal issues which surround protection of human life in pregnancy.
Such a complex balance can be struck in legislation in a way that is not possible if purely a constitutional approach were taken. At the same time, the constitutional “lock” which will be placed on the legislation guarantees that it cannot be altered by the Oireachtas without another referendum.
Furthermore, there has been a detailed process of examination of the issues and their complexities involving many submissions from interested parties and, in particular, the all-party committee's hearings during which many medical and other experts gave evidence. In many significant respects, therefore, what is proposed on this occasion represents a much more detailed approach following on from a careful process of consideration and debate.
I will now turn to the detail of the proposals. The Bill provides for the operation of a mechanism whereby proposed changes to Article 40.3 of the Constitution and the text of envisaged legislation on the protection of human life in pregnancy will be put to the people in a referendum.
Section 1 provides for the amendment of Article 46 of the Constitution so that the text of the First Schedule to the Act will be inserted after the existing section 5 of that Article. Section 2 is a straightforward citation provision dealing with the proposed amendment of the Constitution.
The First Schedule contains the proposed text of the amendment of Article 46 of the Constitution. The proposed text to be inserted as Article 46.6.1 in turn contains the proposed text of Articles 40.3.4 and 40.3.5 of the Constitution.
The text proposed as Article 40.3.4 provides that, in particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002. The use of the term “in particular” makes it clear that the statute envisaged by the amendment, if enacted, is not intended to be a restatement or redefinition of the term “unborn” as used in Article 40.3.3.
The effect of the text proposed as Article 40.3.5 is that any Bill containing provisions to amend the Protection of Human Life in Pregnancy Act, 2002, must be referred to the people in a further referendum. The existing Article 40.3.3, as amended in 1992, will remain also.
The effect of the text proposed as Article 46.6.2 is that if the Protection of Human Life in Pregnancy Act, 2002, is enacted and amendments are made to Article 40, the amendments to Article 46 will no longer appear in the official text of the Constitution and the amendments made to  Article 40 will take effect, appearing in the appropriate place within that Article. This is because, once the amendments to Article 40.3 take place, it would be undesirable for the new Article 40.3 to appear in more than one place in the Constitution, that is, in Article 46 as was as in Article 40.
The text proposed as Article 46.6.3 contains a mechanism whereby, unless within 180 days a law is enacted in exactly the terms of the text seen and approved by the people when they vote on the proposed amendment, the whole of Article 46.6 will cease to have effect and the Constitution will revert to the form in which it existed before the referendum. The text on which the people will vote will be that agreed by the Oireachtas in the course of the passage of the present Bill.
The fact that the text of the envisaged Protection of Human Life in Pregnancy Act is contained in a Schedule to the Bill does not curtail the right of the Oireachtas to discuss it and to propose amendments during the passage of the present Bill, in the same way as happens with any other legislation. It must be understood, however, that when following the referendum, the Oireachtas comes to enact the Protection of Human Life in Pregnancy Act, it will not be able to amend the Bill for that legislation in any way.
The new law, when enacted by the Oireachtas, will not become a formal part of or be written into the Constitution. Its terms will simply have constitutional protection and recognition. It will be open to subsequent amendment like any law but only if the people approve the amending legislation.
The text proposed as Article 46.6.4 states that the Bill for the law on the protection of human life in pregnancy is excluded from the terms of Articles 26 and 27 of the Constitution because if the people in a referendum decide that the Protection of Human Life in Pregnancy Act, 2002, should be enacted, it would be inappropriate that this legislation should nonetheless later be subject to the provisions of these articles and the mechanisms they provide for reference of Bills to the Supreme Court and to the people respectively.
The Second Schedule to the Bill contains the text of the envisaged Protection of Human Life in Pregnancy Act. Irish maternity services have a deservedly high reputation when it comes to both the care of pregnant women and their unborn children. The Government wants to put in place for the first time a legislative framework which will ensure that there are no legal doubts surrounding the provision of medial care during pregnancy.
This Act will make clear what is and is not legally permissible by way of medical intervention during pregnancy. That is the first legislative approach in this area. The lives of women will be protected during pregnancy and the developing human life within the mother's womb will also be protected.
 The Act will also remove any doubt there may be about the legality of treatment which doctors may consider necessary where some women during pregnancy are suffering from certain rare life-threatening medical conditions. It will provide certainty for doctors who may have feared that some interventions, although accepted medical practice in such situations, might nonetheless be unlawful.
Section 1 defines abortion for the purposes of the Act as “the intentional destruction by any means of unborn human life after implantation in the womb of a woman”. It provides exemption from the definition of abortion of a medical procedure carried out by a medical practitioner at an approved place, in the course of which or as a result of which unborn human life is terminated where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent the real and substantial risk of loss of the woman's life other than by self-destruction.
In the course of the hearing of medical evidence by the All-Party Committee on the Constitution, it became clear that in a small number of cases of strict and undeniable medical necessity, intervention by doctors to safeguard the mother's life can entail or result in the ending of the life of the unborn.
On reading the testimony to the all-party committee, it becomes apparent that while there are differences of language and of interpretation among members of the medical profession, their approach to the care of pregnant women and their unborn children is essentially the same, that is, their objective in all cases is to ensure that women receive all the medical care they may need and that the health of their unborn children is afforded the maximum protection also.
There can be no doubt that in rare situations, in order to save a woman's life it may be necessary to intervene in a way that results in the death of the unborn child. These situations are very rare but they can and do occur. Dr. Peter McKenna, Master of the Rotunda Hospital, told the all-party committee that “possibly once a year a woman would be seen in this country who, if her pregnancy is not terminated within a matter of probably hours or days, will die from a complication”.
It is also apparent from the evidence to the committee that many doctors would not consider that such a procedure constitutes abortion. Professor John Bonnar, Chairman of the Institute of Obstetricians and Gynaecologists, stated:
It would never cross an obstetrician's mind that intervening in a case of pre-eclampsia, cancer of the cervix or ectopic pregnancy is abortion. They are not abortion as far as the professional is concerned, these are medical treatments that are essential to protect the life of the mother.
The new law will, therefore, define “abortion” in a way that clearly excludes such ethically legitimate procedures from being termed an abortion for the purposes of our criminal law. Doctors may  provide any medical treatment which, in their opinion, is necessary to safeguard the life of a pregnant woman. The doctor's opinion must be formed in good faith and there is an explicit requirement that regard be had to the need to preserve unborn human life, where practicable. It is important to emphasise that doctors, when treating a pregnant woman, make every effort to safeguard not only her life, but that of her baby. This will not change after the passage of the Act.
The question of threatened suicide in pregnancy is of concern to many people. Threatened suicide during pregnancy was a central issue in the X case and the C case, to which I have already referred. The effect of the proposed Act will be that a threat of suicide will no longer be a ground for legal abortion in the State. I know this is a difficult issue for many people and that there are those who believe it is appropriate and feasible to legislate to permit abortion where suicide is threatened. The suicide risk has only been advanced as a ground for abortion in cases where the State, in one way or another, directly or indirectly, was attempting to restrict the freedom of a woman to travel. The terms of the Protection of Human Life in Pregnancy Act will protect that freedom and will not compromise it in any way.
The Government believes the evidence considered in the preparation of the Green Paper, and the testimony and conclusions in the report of the all-party committee, do not support the maintenance of suicide risk as a ground for abortion in Ireland and would not justify the enactment of a legal basis for abortion to avoid such a risk.
Such studies as have been undertaken suggest that pregnancy has a “protective effect”. In a large UK study the rate of suicide in pregnancy was found to be only one-twentieth that of a similar matched non-pregnant population. Similar results have been demonstrated in other studies. It is important to exercise caution when interpreting the epidemiological data from other jurisdictions with different cultures and where legal abortion is available on a range of grounds, and the Government's view is not based solely on these studies.
In contrast to the type of situation which will be covered by the Bill, it is very difficult to assess whether a risk of suicide is genuine. Evidence to the all-party committee suggests that it is very difficult to accurately predict suicide. Dr. John D. Sheehan, consultant in perinatal psychiatry at the Rotunda Hospital, indicated there is no test or fail-safe way of saying that a person will or will not commit suicide and that where suicide occurs it is due to the interaction of multiple factors, rather than just one. The evidence heard by the committee also indicates that the medical response to a pregnant woman considered to be at risk of committing suicide would be to help and support her and to treat her underlying mental condition. Providing for abortion where a woman's mental health may be at risk is one of the principal grounds on which abortion is permitted  in other countries and experience elsewhere strongly suggests that a change in the law to deal, on compassionate grounds, with a small number of exceptional cases can be exploited to allow wide scale application.
Mr. Martin: To take England and Wales as an example, data from the Office for National Statistics (Abortion Statistics Annual Reference Volume) shows that, in the year 2000, more than 175,000 abortions were performed, and whereas 134 of these were performed because of a risk to the woman's life, more than 162,000, or 92%, were solely on the grounds of risk of injury to the physical or mental health of the woman. The Government is satisfied that, even though there is great public sympathy for the plight of women who find themselves with a crisis pregnancy, to provide for abortion where a woman in such a situation threatened suicide would not command widespread support and could, in effect, ultimately open the way to abortion on social grounds. The Government has therefore come to the conclusion that, notwithstanding the courts' judgments in the cases to which I have referred, on the available evidence, it would not be appropriate to legislate to permit abortion where, during pregnancy, a woman threatens suicide.
The prescribing of emergency contraception is an accepted part of medical practice for many doctors in Ireland, and has been for many years. In evidence to the All Party Oireachtas Committee on the Constitution, Professor Gerard Bury, President of the Medical Council, said, “It is currently a part of normal practice that hasn't been challenged or, in fact, even addressed within the ethical guidelines. It is seen as normal practice.” However the drug usually prescribed is an increased dose of the ordinary oral contraceptive pill, which is not licensed for use as emergency contraception. The all-party committee advocated in its report that any legal uncertainties that may exist in regard to the morning after pill should be removed. The Government accepts that this is unsatisfactory and that any doubts about the legality of drugs used as emergency contraception should be addressed. Under these proposals the use of emergency contraception, in the form of the morning after pill and the post-coital IUD, will not be prohibited. It is important to stress that the use of any drug to end an established pregnancy will be prohibited under the Act. Drugs are now available, and others may be developed in the future, which are intended to bring about an abortion, without surgical intervention. The licensing of such products in Ireland  would not be permissible under the proposed legislation.
Bearing in mind that the envisaged legislation will require the holding of a referendum if it is to be amended in any way, it is considered appropriate to provide a more flexible mechanism for the approval of certain hospitals for the purposes of the Act. It is therefore intended that arrangements will be put in place to enable a Minister of the Government, by order, to approve certain hospitals. The term “approved place” is intended to be applied to hospitals under responsible management and possessing adequate expertise in the area of obstetrics and gynaecology and in the treatment and prevention of life-threatening
Section 2 deals with the prohibition of abortion within the State. The criminal offence of abortion is restated in clear, modern terms and the legal penalties are specified in terms which leave no doubt about the seriousness of the offence. The rebuttable provision regarding the presumption of the natural and probable consequences of a person's conduct replicates the ordinary provisions relating to criminal intent, as set out in the Criminal Justice Act, 1964, in respect of homicide. The purpose of this provision is to ensure a person who, for example, administered a drug or performed a medical procedure, the effect of which was to end unborn human life, would be presumed to have intended this outcome. He or she could, however, rebut that presumption by establishing, in a jury's mind, a reasonable doubt that he or she did not intend to end unborn human life, despite the fact that that was the natural and probable consequence of his or her actions.
Contravention of the law in relation to abortion includes, as offences, attempted abortion and aiding, abetting, counselling or procurement of such abortion. The prohibitions encompass those currently contained in sections 58 and 59 of the Offences Against the Person Act, 1861, which are repealed by section 6. Under existing legislation, any person, including the pregnant woman, who procures an abortion is liable, on conviction on indictment, to be sentenced to imprisonment for life or any lesser penalty. That is the current position, under existing legislation, and has been so for a very long time. This Bill differs from that and provides for a penalty of up to 12 years. I accept that some people have concerns about the potential criminalisation of a pregnant woman who procures her own abortion. In practice, of course, prosecutions against women in such a situation are extremely rare, if they have been taken at all for very many years.
Mr. Martin: The requirement in section 2(4) that a prosecution may be brought only by, or with the consent of, the Director of Public Prosecutions ensures that frivolous or mischievous cases cannot be brought before the courts. The purpose of section 3 is to provide that a medical practitioner, or any other person, will not be obliged to carry out a procedure to which he or she has a conscientious objection, even though it may not constitute abortion under the Act. Given that the Act in effect simply provides legal protection for current medical practice, it is not expected that this provision will have any adverse effect on current practices.
Section 4 deals with travel and information. The Act protects freedom to travel and the right to information in accordance with the existing provisions in the Constitution, approved by the people in 1992. It also makes clear that a court shall not restrict a person from travelling to another state on grounds that his or her conduct there would be an offence under this Act, were it to occur in Ireland. I have already referred to the issues about the right to travel in the context of the C case of 1997 and the Act will ensure there is no longer any doubt over a person's right to travel abroad. There is no question of a person's right to travel outside Ireland being interfered with in any way by the State, whatever his or her circumstances or reason for travelling.
Section 5 deals with the arrangements which apply to orders made under section 1 of the Act. The terms used are sufficiently flexible to accommodate changes which might well occur in the future, such as a change in the title of a Minister in the Government. It is for this reason that the term “a member of the Government” is used, rather than the current title of a Minister. An order made under this section of the Act, in addition to designating specific hospitals as approved places for the purposes of section 1(2) of the Act, may deal with the making and keeping of records of medical procedures. This may include records of opinions and confirmation of records. Orders must be laid before the Oireachtas and may be annulled by resolution of either House within a period of 21 sitting days. These arrangements enable orders to be changed where appropriate, for example allowing new hospitals to be designated, should this become necessary, without such a matter having to be the subject of an amendment of the Act, which would, of course, have to be approved in a referendum before it could have effect.
Section 6 repeals the current legislation prohibiting abortion, in the form of sections 58 and 59 of the Offences Against the Person Act, 1861,  as these provisions are to be replaced by those contained in section 2 of this Act.
The proposals in this Bill represent a fair and reasonable attempt to resolve the constitutional and legal difficulties that have surrounded the issue of abortion since the judgment in the X case in 1992. They are also the culmination of a lengthy and detailed process of consultation and debate and the time has come to move on from this and attempt to resolve matters for the future.
A pregnant woman should be entitled to whatever medical treatment she may need, even where this may unavoidably place the survival of her unborn child at risk. Any legal doubt about what is permissible in such cases must also be removed, so that doctors will be able to continue to provide the necessary treatment in accordance with established medical practice. The Irish health care system has an enviable reputation when it comes to the care of expectant mothers and their children and what is proposed in this Bill will protect current practice, not change it.
For the reasons which I have described, a simple constitutional provision with no legislative backing would run a major risk of subsequently being interpreted by the courts in a manner not anticipated. Therefore, the means which the Government has chosen is the best way of ensuring that safeguards are put in place which spell out, in straightforward terms, what is and what is not allowed and which can be amended only if the people in a further referendum wish to do so.
The Government believes this approach represents a reasonable view which will command the support of the middle ground of public opinion. It aims to be compassionate and realistic while also providing an honest response to the harsh realities faced by many women in this country. I am hopeful that this proposal will command general support as a prudent, workable, sensible, caring and compassionate approach to what is for everyone an emotive issue and, for some, the most important issue in their lives.
Dáil Éireann, conscious of the need to approach with great care any proposals to incorporate the effects of detailed legislation into the Constitution, noting that Dáil Éireann and Seanad Éireann are being asked to pass legislation which will be open to interpretation by the courts but not amendment by the Oireachtas if the courts make an interpretation not envisaged by the Oireachtas or the people, noting that future amendments to the proposed legislation if passed will not be subject to the President's  right to refer such amending Bills to the Supreme Court, noting in particular the unprecedented proposal to allow a Minister, by order, vary the effect of a constitutional provision in relation to evidence to be retained as to whether a medical procedure or an abortion, both as defined in the Bill, had taken place and by order to determine and vary the approved places where such medical procedures may in future take place, defers the second reading of the Twenty-Fifth Amendment to the Constitution (Protection of Human Life and Pregnancy) Bill, 2001, to enable the Government to present to Dáil Éireann satisfactory reasons for the mechanisms being proposed and their implications for the Oireachtas, the courts and the public interest and resolves accordingly that the Bill be read a Second Time this day three months.
The Minister's response to our motion will influence our vote on the Second Stage of this Bill if it is proceeded with at this time. Fine Gael made a constructive contribution to the All-Party Committee on the Constitution and instigated the proposal for a compassionate, pro-active and adequately funded structure to meet the needs of women in crisis pregnancy. Our Care of Persons Board Bill, 2001, published last month is evidence of our real concern to reduce the number of abortions.
There are three strands to this issue: the legislative and constitutional process; the Fine Gael Care of Persons Board Bill; and a structured approach by the Department of Health and Children, the Department of Social, Community and Family Affairs, other Departments, health boards and NGOs to promote education and prevention of unwanted pregnancy. Fine Gael's preferred approach is to separate the second and third strands. My comments today relate in the main to what I described as the first strand, following on the publication of the Twenty-Fifth Amendment to the Constitution (Protection of Human Life and Pregnancy) Bill, 2001.
Over the summer, Fine Gael published a second Private Members' Bill, the Surgeon General Bill, 2001. Our objective is to create the Office of Surgeon General, which will work with the Oireachtas Committee on Health and Children. Fine Gael proposes that the Surgeon General should have the same relationship with the Oireachtas Committee on Health and Children as the Comptroller and Auditor General has with the Committee of Public Accounts. The Surgeon General will independently report to the Oireachtas on the operation of the health services.
The Judiciary and medical practitioners will have a role in applying the provisions of the twenty-fifth amendment if passed. The Oireachtas can remove members of the Judiciary for stated misbehaviour. The Oireachtas has no power over medical practitioners. A Surgeon General could report to the Oireachtas on any  health issue, including treatment during pregnancy. This would allow the Oireachtas to receive independent advice on the implementation of the amendment if passed and would provide a degree of transparency, which would inform public opinion.
In relation to the Twenty-Fifth Amendment to the Constitution (Protection of Human Life and Pregnancy) Bill, 2001, Fine Gael continues to participate in the process by our amendment today as we did in the All-Party Committee on the Constitution. The process of developing national policy in this area commenced in 1979 and continued through the Green Paper in 1999 and the report of the All-Party Committee on the Constitution in 2000. Fine Gael recognises that people have the right to seek to amend the Constitution and this is specifically provided for in article 6 of the Constitution, which reads:
All powers of government, legislative, executive and judicial, derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal, to decide all questions of national policy, according to the requirements of the common good.
The Fine Gael Party has concerns about the Bill to which I will return later. We have scrutinised it with a view to considering the Government's proposal to put the matter to the people in a referendum. The Government's proposals, involving as they do an amendment to incorporate the effect of detailed legislation into the Constitution for the first time, need careful examination. For all we know there could be weaknesses in the proposals that we have not discovered on first reading. This is why the reading and Report Stages require careful attention on this occasion.
As the Bill stands, we have serious reservations. For example, any medical practitioner, even one just out of training, could decide to carry out the medical procedure referred to in section 1(2). Senior physicians have already questioned this provision. By contrast a lawyer cannot even decide a minor court case until he or she has the ten year post-qualification requirements to become a judge. Incidentally the wording does not refer to a registered medical practitioner.
In 1983, a short amendment to the Constitution seemed to be watertight. On the first challenge and to the surprise of those who proposed and supported the amendment, the Supreme Court ruling in the X case showed this not to be the case. The Government now effectively proposes a much longer amendment and this may even widen the scope for interpretation by the Supreme Court. For example, in article 40.3.3º of the Constitution, the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.
This is believed by those who supported the  1983 amendment and others to apply from conception. Section 1(1) of the Bill, which if passed will be added as article 40.3.4º of the Constitution, seeks to protect unborn human life after implantation in the womb, but implantation is not defined. Conception is not mentioned anywhere in article 40.3.3º and a future Supreme Court could, for example, take the whole of the article as amended into account. Whether this could reduce protection to the unborn between conception and implantation is not clear. We note that the State must defend and vindicate the lives of the unborn under article 40.3.3º. Under article 40.3.4º as proposed, effectively the life of the unborn in the womb shall be protected in accordance with the Protection of Human Life and Pregnancy Act, 2002. The words “defend and vindicate” seem stronger than “protect”.
Aside from the scope for interpretation which the Supreme Court may have it appears that the Medical Council has latitude in relation to changing ethical guidelines and that these can change with relative ease and behind closed doors as happened over the summer. The Medical Council ethical guidelines use the words “where there is a real and substantial risk to the life of the mother”. This is slightly different from those being proposed in the constitutional amendment. Under the Government's proposals a designated Minister would be allowed to authorise approved places where medical procedures would be carried out. It is proposed to give a Minister power to do this by order. An order could be narrow and name only one or two places, or wide and name any doctor's surgery. It could also be varied. Similarly by order, a Minister would have power to vary the type of records a medical practitioner would have to keep as evidence of a medical procedure under section 1(2) as distinct from an abortion under section 1(1). This power could be used on the one hand to blur the distinction between a medical procedure and an abortion. On the other hand, it could be used to require such detailed records to be kept that no medical practitioner would feel safe carrying out such a procedure for fear of prosecution. A minority party or even Independent Deputies could, for example, make demands either way as part of the price for supporting a Government in office. Thus, a small minority could effectively set aside the wishes of the people. That a Minister would have power to vary the effect of a constitutional amendment is without precedent and, at best, is questionable.
Section 2(3) provides that the penalty for carrying out an abortion as defined could range from a fine, which is unspecified, to 12 years imprisonment. This would be entirely at the discretion of the Judiciary. A future Judiciary might view abortion in such a light that only nominal fines would be applied, thereby rendering restraint on criminal abortion ineffective.
A human embryo is the new organism which comes into existence at fertilisation. This organ ism is not simply a collection of cells but, to quote the Australian Senate 1986 select committee considering human embryo experimentation in Australia, “is oriented towards further development”. A European People's Party document, Union of Value, presented to the EPP congress at Berlin in January 2001, stated, “Distinctions between human person and person, or between the embryo as a potential human being cannot be made without introducing an unacceptable kind of discrimination.”
This issue needs to be considered in the light of what is contained in Article 40.3.3º of the Constitution and what is proposed to be given constitutional effect in Article 40.3.4º, if passed. The job of the Opposition is to treat legislation with the consideration it deserves, to point to its weaknesses and to seek to improve it. This is especially true where legislation is to be given constitutional status, perhaps for all time. The content of an amendment of the Constitution Bill which is passed by the Houses of the Oireachtas will determine our attitude to the subsequent referendum campaign. We do not understand why a press conference was hurriedly and unexpectedly called to launch these proposals and we do not intend to be rushed in our consideration of the important contents of this Bill. The Second Schedule provides that the Short Title of the Act may read “Protection of Human Life in Pregnancy Act, 2002.” This means the legislation is not to be enacted until next year and it gives time for detailed consideration of these proposals. We should use it to reflect on what are life and death issues.
In 1979, the Oireachtas passed the Health (Family Planning) Act, which incorporated into law the provisions of the British Offences Against the Person, 1861, which made it illegal to procure a miscarriage. Until then the 1861 Act had been the law on abortion. In 1983, the proposal contained in the Eighth Amendment of the Constitution Bill was passed by referendum and this was inserted as Article 40.3.3º of the Constitution. In 1986, the Society for the Protection of the Unborn Child, SPUC, successfully obtained an injunction restraining the Dublin Well Woman Centre and Open Door Counselling from providing information which encouraged or facilitated abortion. This decision was upheld in 1988 by the Supreme Court when it was established that this restraint extended to the provision of addresses and telephone numbers. In 1992, the Dublin Well Woman Centre and Open Door Counselling took the matter to the European Court of Human Rights on the grounds that the Supreme Court decision breached the right to freedom of expression. The Strasbourg court ruled in their favour.
In the same year the Supreme Court ruled that a 14 year old girl, pregnant as a result of rape and who was considered to be suicidal, had the right to travel outside the State for an abortion because of the real and substantial threat to her life. This became known as the X case. The judgment also  suggested that had she not been suicidal her right to travel for an abortion might be restricted. As a result of this and following on much public debate, three further amendments to the Constitution were proposed in 1992, which sought first, to clarify the law on what was meant by a real and substantial threat to the life of the mother, second, to deal with the right to travel and, third, to deal with the right to information.
The wording of the proposed amendment to deal with what was meant by a real and substantial threat to the life of the mother stated, “It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of self destruction.” This was opposed by both sides of the debate and was defeated. The other two amendments were passed and are now incorporated in Article 40.3.3º. Legislation was introduced in 1995, which dealt with how information would be provided.
In 1997, the High Court ruled that a 13 year old girl, pregnant as a result of rape in the care of a health board, could be taken out of the State for an abortion by the board even though this course was opposed by her parents. The judgment was never appealed. In 1999, the Green Paper on Abortion was published by the Government and in 2000 the All-Party Committee on the Constitution published its report, which has been considered by a Cabinet sub-committee. This summer Fine Gael published two Bills, to which I have referred, and in recent months the Medical Council changed its medical guidelines.
This series of events illustrates that the issues involved can become very technical. They have given rise to court cases, both here and at the European Court of Justice. They have been interpreted in a way not envisaged by this House or the people. We should not take a solely legalistic approach to this. The number of legal aspects involved has meant we have not given due regard to the wider issues and to those who are vulnerable. That is why last September, I launched the Care of Persons Board Bill on behalf of Fine Gael. I said then that women experiencing crisis pregnancy need to be supported by the State and that for too long the State has failed to put in place proper support structures to assist them, leaving such work to excellent but over-stretched and under resourced voluntary organisations. Fine Gael supports the establishment of such support structures through the Bill. We envisage that the role of the board would be to support and facilitate any expectant mother experiencing a crisis pregnancy to bring her pregnancy to full term.
There is a tendency in Ireland to seek comprehensive solutions and to take no action until we have a magic formula. We should have considered separating the issues in the way I have suggested because some give rise to the need for  accommodation and such like while others give rise to the need for sexual education and prevention. They are not necessarily best grouped into the same agency, although I acknowledge that the agency that has been established, which Fine Gael first proposed, is an improvement.
Much of the debate to date has centred on the argument for or against further constitutional amendment. Fine Gael played its part in the Oireachtas all-party committee on abortion. It was our proposal in the committee's report that led to recommendation for the establishment of an entity to support women in crisis pregnancy and their unborn. It is in that area that we will do most to reduce the rate of pregnancy in Ireland.
The Oireachtas all-party committee report noted that nobody knows the exact numbers of Irish women having abortions outside the State but it is clear that a significant number do. According to the report of the committee, the statistics supplied by the Office of National Statistics for England and Wales show that in 1971, 578 women “normally resident in the Republic of Ireland” had abortions, while in 1999 the figure was estimated at 6,226.
The Oireachtas all-party committee report contained a section headed, Themes related to an Abortion Decision, and included a record of interviews which set out the reasons given for having an abortion. Career or job related concerns were given as the reason by 36 people. The stigma of lone parenthood was cited by 30. The number quoting needs of the child was 30 while the figure quoting financial unreadiness was 28. Twenty-seven quoted unreadiness for a child and 24 the inability to cope. Being too young was the reason given by 22. Nineteen already had a child and 17 said it was their body and their right. Education and training was cited by 14, ten never wanted a child, seven gave as their reason the stigma on parents, six said there was no way they could have a child at this time and four said they were too old.
More than one third of those interviewed cited stigma, financial unreadiness and the inability to cope as their reasons. That is why we have to put huge amounts of our energy, effort and resources into helping women and their extended families during crisis pregnancies. If we were serious about the issue that is what we would do. Some women may choose abortion because they find themselves in a crisis and feel helpless and unsupported. In many cases they may feel they have nowhere to turn. We have already had a Green Paper and the All-Party Committee on the Constitution agreed that a major problem facing Ireland is the large number of crisis pregnancies resulting in recourse to abortion facilities available in Great Britain. It also spoke of the urgent need to adopt measures to reduce the number of crisis pregnancies and that women in such pregnancies must be offered a real and positive alter native to abortion. It said there is an urgent need to reduce the rate of abortion.
It must be clear to the House that whatever happens to this Bill, whether it is passed here or endorsed by the people, we are not going to deal with this issue unless we commit wholeheartedly to assisting those in crisis pregnancies, to prevention of such pregnancies and to education. That is where we have to concentrate our efforts. Our Bill contains specific proposals to address aspects of this issue about which we are very concerned. The Minister has already outlined what the Bill will contain if it is amended. I will not repeat that, but I do need to raise some concerns which I will return to on Committee Stage.
The Second Schedule of the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001, repeals sections 58 and 59 of the Offences Against the Person Act, 1861. Section 1(1) defines abortion as “the intentional destruction by any means of unborn human life after implantation in the womb of a woman”. People have various interpretations, but that is the one described in the Bill. Section 1(2) states:
Notwithstanding subsection (1) of this section, abortion does not involve the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which the unborn human life is ended where the procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction.
Let us be clear about this. That would be described by any medical dictionary as abortion. It has not been described as abortion in this case. It is described as a “medical procedure” and is being permitted. We need to know exactly what the proposal is. The “approved place” is to be decided by ministerial order. “Medical practitioner” means a person permitted by law to practice as a medical practitioner in the State. “Reasonable opinion” means a reasonable opinion formed in good faith which has regard to the need to preserve unborn human life where practicable and of which a written record has been made and signed by the practitioner. “Woman” means a female person. However, “medical procedure” is not defined. Why is that? Perhaps the Minister will tell us when he replies. Section 1(2) differentiates between “abortion” and “medical procedure” so why is it not defined along with the other definitions? The Bill even defines what a “woman” is.
Section 2 prohibits the carrying out of abortions in the State, though this is confined to “abortion” as defined in section 1(1). This section also provides for imprisonment for up to 12 years or a fine, or both, for a person who attempts to carry out an abortion or who aids, abets, counsels or procures any person to do so. Section 3 provides that “nothing in the Act should be con strued as obliging any person to carry out any medical procedure referred to in section 1 of this Act”. It allows for conscientious objection. Section 4 deals with travel and information but section 5 provides that an authorised member of the Government may make orders relating to “the making, keeping and confirmation of records (including records of opinion) of medical procedures referred to in section 1 of this Act as may be considered by the member of the Government concerned necessary or appropriate for the purposes of this Act”. It provides that an order may be amended or revoked by order.
An order shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.
Section 5 is of central importance in determining whether a medical procedure which terminates unborn human life is “in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life”. “Reasonable opinion” means a reasonable opinion formed in good faith and of which a written record has been made and signed by the practitioner. This section requires careful consideration. It could, as currently drafted, give rise to a blurring of the distinction between “abortion” as defined by section 1(1) and a “medical procedure” as set out in section 1(2). Some future Minister might require only a perfunctory written record to be kept by a practitioner or require such detailed records to be kept that a medical practitioner would shy away from medical procedures for fear of committing a criminal offence. A Minister could, thereby, frustrate the will of the people if the proposed amendment to the Constitution is passed.
Ministerial orders do not normally receive detailed consideration or even the debate in the Houses of the Oireachtas. People may feel that they know what the Minister for Health and Children, Deputy Martin, is going to do. They may feel they know what I, or some other Member of the House, would do, but do they know what the Minister will do in ten years' time? Perhaps it will be decided that this is a Bill to deal with pregnancy. This Bill deals with a constitutional issue. Should any Minister in any Government have power, by order, to vary the effect of a constitutional amendment following the vote of the people and enactment by this House? It is a very dangerous proposition. It is something I will be examining very closely.
I have been reasoned and careful in what I have said today and I ask the Minister to carefully heed what I say about this section. As drafted it gives rise to very serious concerns. He should forget about it being he who is in office and think in  terms of who could be there. It might be someone who is extremely conservative or someone who is extremely, so-called, liberal. How, or why, should anybody have the right to vary provisions in the Constitution in such a way?
I now turn to some of the replies which were given to my colleague, Deputy Noonan, the leader of Fine Gael, by the Taoiseach. A number of my colleagues will be referring to this and I do not want to steal their thunder, but I will mention a few matters in the time that is left to me.
In the reply to the fourth question asked, the Taoiseach told Deputy Noonan that the Government's proposal recognises that it is not practicable to attempt to protect, by the criminal law of abortion, the fertilised ovum prior to implantation in the womb of a woman. That is a very interesting statement. What are its implications for embryo or stem-cell research? Some of the replies given to these questions are hostages to fortune. That is a very interesting statement which requires attention.
The reply to the seventh question declared that it is not anticipated that the Government's proposals for amendment will impinge on those rights of the unborn and the mother already identified in the Constitution. It is not anticipated, which means that it is not known. Nobody knows whether it will impinge on them. It will be left to the courts. If the courts anticipate in a way that we or the people do not intend, there will nothing we can do about it. The use of words such as “anticipate” is questionable as one has to ask by whom it is anticipated. It is a very subjective use of language.
In the reply to Question No. 9, the Taoiseach referred to the possibility of a medical practitioner with no experience or expertise in the area having access to a hospital designated as an approved place for the purpose of the legislation being too remote. Where in the Bill is the word “hospital” mentioned? There is no mention of hospitals in the question or the Bill.
In the past, if somebody told me that I would have a fully equipped office in my house with on-line computer facilities and access to the Oireachtas and that I could send all my e-mails from home, I would have said it was not practical. In time to come, it is likely that there will be sufficient technical capacity – if it does not already exist – for any GP to carry out one of these procedures in a surgery. I know the Minister has no intention of licensing a surgery, but he will not be the Minister for-ever. We are giving some future Minister the right to vary this in any way he wants. I do not know, therefore, why the Taoiseach should use the word “hospital” as it is not mentioned anywhere.
 As I said earlier, a medical practitioner – not a registered medical practitioner – straight out of college will have the right to carry out such a procedure. This is quite dangerous. It also says “approved places” is intended to be applied to hospitals under responsible management possessing adequate expertise in the area of obstetrics and gynaecology. Who says this? It is not in the legislation, nor is it on any proposal before us.
With regard to the reply to Question No. 10, it says that “these safeguards and the parliamentary scrutiny provided for in section 5(4) are considered to be sufficient to prevent the abuse of unauthorised places”. They certainly are not. Orders are never scrutinised by this House. They go into the library, which is what will happen to these orders in due course. We will all be so busy with legislation that any Minister could make orders, put copies in the library, and we would not even see them. They certainly will not be debated. We are talking about belts and braces, putting things into the Constitution because they must have its protection. Then we leave the barn gate open for this sort of fudge, which is very peculiar.
The reply to Question No. 11 says it is not essential that the practitioner must form the opinion unaided or without guidance. That is not the point because it is possible. One does not require any assistance or expertise. One just has to be out of college, qualified as a medical practitioner – that is all.
It also says in the reply that the medical practitioner is always “responsible for the lawfulness of procedures carried out by him or her”. We all know, and the people should know, that if one asked the Medical Council whether its members would follow the Constitution and the law of the land or follow the ethical guidelines of the Medical Council, they would say they would follow the latter. The reference to “lawfulness of procedures” is not a great assurance.
The reply to Question No. 14 says it is the Government's view that the medical consensus in the profession is the only thing which now stands between us and the de facto introduction of what they call “social abortion” in this country, a term which some people find offensive. If this is true, why did the Minister not legislate to address the matter before now? Since 1987, this Government has been in office, with the exception of two and a half years. The reply makes a very bold statement. Now, instead of dealing with the issue properly, we have to alter the Constitution to do so. The reply is extraordinary.
There are questions to be raised concerning the X case and others will do that. I will not do so because it would take too much time to raise the two aspects of the issue that concern me. However, I will return to the matter on Committee Stage.
It says in reply to Question No. 17 that “there is nothing in the proposed amendment or in the  envisaged legislation which would render it illegal for a health board to assist a woman to travel outside the jurisdiction in such cases”. This is in reference to the X case. Although it says it is “not illegal”, is it legal? Will the Minister answer this in his reply to the debate?
In the reply to Question No. 20, the Taoiseach says “no plausible scenario involving any difficulty has been advanced by anyone who has raised the issue of the interaction of the proposed amendment with EU law.”. Will the Minister indicate to us in the House the status of this proposal in relation to Protocol 17 of the Maastricht Treaty?
The reply to Question No. 24 says that “the morning after pill as emergency contraception is not effective when implantation is complete”. In this respect, it is to be distinguished from the use or administration of chemical abortifacients. This begs the question of whether it can harm, and if so, can it be criminalised under section 43(3)? Most of our discussion in this regard refers to section 43(4).
Will the Minister state, since he is using the term “implantation”, when it starts? How long does it take? What is the time frame in terms of the constitutional protection for the implanted unborn? When does that time start running because there is no definition of it? We would like to know how the Minister arrived at that use of wording.
There are many other questions that may arise in due course. We have touched only on some of them today in the opening of this debate. It is my duty, and that of the Opposition, to closely examine sections of proposed legislation. We will have to be very vigilant in this case as it is intended to incorporate such detailed wording into the Constitution itself. This is the constitutional duty of the Dáil and Seanad and it is a vital part of the democratic process. If the Bill passes and the people vote favourably in the referendum, within 180 days the Oireachtas must put the Bill into effect or else it will fall. It is a most unusual practice to tie the hands of the Oireachtas in this way, not just in terms of what must be dealt with if the people approve this, and to give us no choice but to accept that or to ignore the will of the people. It is a strange choice to give us. We could ignore the will of the people, but never again thereafter will we have the chance to amend that legislation, unless there is a Constitutional amendment. That will not apply to the Medical Council or the Supreme Court, or to the Minister in the orders he would make.
Fine Gael does not believe it is best practice to incorporate detailed provisions in the Constitution. We recognise that, under Article 6 of the Constitution, it is ultimately a matter for the people to decide. However, legislators have been given the right under the Constitution to decide on which amendment should be put to the people. While the right of the Oireachtas to pass any legislation it deems fit for amendment of the Constitution for consideration by the people is  enshrined, Members of the Oireachtas have also been give an Constitutional right and duty to frame such amending legislation.
The job of the Opposition is to treat serious legislation with the consideration it deserves, point out its weaknesses and try to improve it. This is particularly true of the legislation we are discussing. I hope the Minister will allow the disquisition that is necessary on this Bill and accept the amendment I am tabling today on behalf of Fine Gael.
Yesterday 18 Irish women travelled to Britain to have abortions. Today as we begin this debate 18 more Irish women are travelling to Britain to have abortions. Tomorrow another 18 will travel. This will go on each day this debate continues and, when the debate is over, nothing will have changed for these women. Approximately 100,000 Irish women have made that journey since 1983 when the people voted to include Article 40.3.3º in the Constitution. It states that the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate that right.
In 1992 the Supreme Court determined in the X case that a threat to self-destruction can amount to a substantial risk to the life of the mother. This decision enabled an abused 14 year old girl to have an abortion. Subsequently the then Taoiseach, Deputy Albert Reynolds, introduced a new amendment to the Constitution specifically excluding suicide as grounds for consideration in a possible medical termination of pregnancy.
 Since the Supreme Court decision in the X case there has been no sudden rush to the courts by women looking for an abortion on the basis that they are suicidal. This is not a particular problem now, and there is no pressing reason to exclude it constitutionally as a basis for a termination in every case in the future. We must be willing to consider the fact that some very unusual suicide case may arise where a woman cannot for some reason or another leave the jurisdiction and where a real and unavoidable risk of self-destruction exists. For example, a young pregnant girl may become severely anorexic after a multiple rape. Such a girl with her unborn could be condemned by this amendment with the hands of the Supreme Court tied, thus preventing any sensible intervention to save her life.
Almost ten years later he has been proved right. There has been no sudden rush to the courts, even to this day. There was the C case which was an unusual and dreadful suicide case which came before the courts. The courts found in favour of the girl seeking an abortion on the basis of the Supreme Court's interpretation of Article 40.3.3º and her life was saved.
It is the view of the Labour Party that the removal of suicide as grounds for an abortion would constitute a grave, if rare, risk to women's lives. It was our view in 1992 and it remains our view in 2001. Regrettably, this time around the Progressive Democrats have ditched principle in favour of political expediency. Many people listened to and squirmed at the weasel words of the Minister of State, Deputy O'Donnell, at the press conference to launch the Bill when she defended the indefensible somersault executed by her and her party. The choice between radical and redundant has now been made by the Progressive Democrats. They have chosen the latter and are clinging desperately to the Government train until it runs out of steam.
In 1992 when the amendment was put to the people, they rejected it. Whenever – if ever, because there is still a doubt about this – it is put again, I believe the people will reject it again. Now that we are debating the Bill we have a duty to clear away the fog. There has been so much window-dressing, clever disguise and obfuscation by the Government in its presentation of this new amendment that we need to speak plainly in the House. The amendment being presented by the Taoiseach is, in essence, identical to the one put to the people in 1992 by the then Taoiseach, Deputy Albert Reynolds. It is designed to take away a fundamental right to life Irish women enjoy under our Constitution. Only the removal of suicide as grounds for abortion is at variance with the Constitution as interpreted by the Supreme Court. It is the only part of the Bill which requires a referendum. Despite the fact the people voted to retain that protection for women's lives in 1992, the Government refuses to accept the will of the people and is again pursuing an answer denied to it in the past.
 The chairman of the expert review group on the Constitution, Ken Whitaker, someone who would describe himself as pro-life, considered that about 3% of pregnant women were suicidal or were at risk of suicide. He said during his presentation to the Joint Committee on the Constitution:
. . . one has to ask oneself in the case not just of pregnant women generally but women who are pregnant and victims of rape or incest, what is the risk? They might figure largely in constituting that 3%. That is the point I am making. I wouldn't get the impression that it has been ruled out completely; it's very rare, but as I rate the thing . . . it's not impossible of course, but it should be perhaps evident in a particularly severe case that there was a serious likelihood of suicide.
If the four words in line 15 in the Second Schedule, “Other than by self-destruction”, were removed, there would be no need for a referendum. If those four words were removed from the Bill, it would safeguard the right to life of some poor, unfortunate pregnant woman who might be so distraught, damaged or deranged that she becomes suicidal. That woman could be the daughter of someone in the House, of a secretary, an usher or someone in the media who works in the Oireachtas. We have to ask ourselves, if she were our daughter, what would be our attitude?
I have asked myself that question. If my daughter were 14 years old, horribly raped and made pregnant, I would hope she might find the strength to carry through the pregnancy. However, if the burden were too great and crushed her spirit to the point that ending her life would be preferable to continuing it, I would want her to have an abortion. If this amendment is passed, that child, who could be the daughter of anyone here, would be criminalised. She could even be jailed for 12 years, assuming she had not committed suicide.
I accept that some people have concerns about the potential criminalisation of a pregnant woman who procures her own abortion. In practice, of course, prosecutions against women in such a situation are extremely rare, if they have been taken at all for very many years.
As a member of the Joint Committee on the Constitution I sat through the hearings held into the wide spectrum of opinion that prevails on the topic of abortion. No agreed wording on an amendment to the Constitution was presented to us. We heard many demands for a referendum from people who spoke strongly and sincerely about their anti-abortion views without a specific  definition as to how the Constitution might be changed. There was no ground swell demand to exclude suicide as grounds for an abortion. It was only at the end of the process when three divergent views were clarified in the committee that Fianna Fáil outlined it as their essential position, to remove, in effect, this protection for young women who may be so distraught, damaged or deranged that they become suicidal.
The Taoiseach says that the reason he wants to remove this right is to prevent a slide into what he calls freely available “social” abortion. This is risible. Despite the current constitutional protection, we live in a country which has the most restrictive regime on abortion in Europe, where women flee to another jurisdiction to find the succour denied to them at home. We have even been criticised by the UN for having a regime so severe that it infringes fundamental human rights.
The Taoiseach conveniently ignores the simple facts. There is no evidence of any shift towards liberalisation on abortion in the ten years since the X case. During that period about 5,000 women on average travelled to Britain to have abortions. They did so, conveniently for successive Governments, in secrecy and silence. In 1996, the expert constitution review group, chaired by Dr. Ken Whitaker, considered the issue in detail and came to the conclusion that there was no consensus on any amendment to the Constitution and that not only should the Government legislate in line with the X case but that this was the only practical possibility. In making this recommendation, this eminent group of experts believed, unlike the Taoiseach, that women, doctors and legislators could be trusted.
Deputy Ahern's proposal is less about the protection of women's lives or of the unborn and more about the protection of the life of a Government. It is about a commitment made to four Independent Deputies to secure their support. They sought a referendum without being able to produce a wording. The Government produced “suicide”, since no one could think of anything better, as the hook to deliver the Independents.
When this legislation was published, the Taoiseach, in a speech outlining the Government's position, stated that the new law will protect both women and the unborn in pregnancy, but this is not true. The right to life that women currently enjoy under the Constitution will no longer be equal to that of the foetus, if this amendment is passed by referendum. Women's lives will not be protected in the way they are now if Fianna Fáil and the Progressive Democrats get their way. The Taoiseach went on to say that the risk of suicide has only been advanced as grounds for abortion in cases where the State, in one way or another, directly or indirectly, was attempting to restrict the freedom of a woman to travel. The new law, he said, will protect that freedom and not compromise it in any way. That is untrue. There is no guarantee that, should another C case arise where a young suicidal girl in the care of the State seeks an abortion abroad, her rights would be  safeguarded nor is there any guarantee for the anorexic child in Deputy O'Malley's example.
However, the Taoiseach and the Tánaiste stated that they see their approach as developing a consensus on the issue. This is a distortion of the facts and is dishonest. They know as well as anybody that there is no consensus on abortion in relation to any constitutional change. There never was and it is unlikely that there will in the foreseeable future. After 18 months of exhaustive work by the All-Party Committee on the Constitution, under the excellent chairmanship of Deputy Brian Lenihan, it was self-evident that there was no consensus. The three different positions reflected within the committee were spelt out carefully and in detail in its report presented to the Taoiseach a year ago. Where there was consensus on the issue of reducing the rate of abortions by establishing a dedicated agency, the Government ignored it until they could wrap that proposal like a disguise around the hard, unpalatable truth that this constitutional amendment is a rerun, in essence, of 1992.
I can understand that obstetricians want to see the legislative clarity that this Bill provides for the rare procedures they must carry out to save a woman's life. These procedures are abortions and no change in language as provided for in this Bill changes that fact. In his submission to the all-party committee, Dr. Peter McKenna said about this kind of medical procedure:
Personally, I think that you are better to be up front and clean about this and say that the pregnancy is being aborted. That is the treatment. It is not a side effect of the treatment. It is not that it is an unintentional side effect of the treatment. The treatment is you end the pregnancy. That is, I think, abortion.
However, there are serious questions about the legal implications of the Government's approach, and the Minister in his response needs to clarify the following points. The amendment seeks to add two new subsections to the original Article 40.3.3º and not to replace it. The first question is if while the new amendment and accompanying legislation is specifically designed to protect unborn life in pregnancy and practices relating to IVF, for example, are not covered, will there not be some remaining, if imprecise, effect to be given to the original subsection (3) which might well cover these circumstances and practices? In other words, although the morning after pill, the IUD and rules relating to the disposal of fertilised ova outside the womb will not be covered by the terms of the new Act which deals solely with criminal sanctions for abortion, the question remains as to whether a court might assume jurisdiction to outlaw these other practices by virtue of the original amendment.
The second question relates to the arbitrary choice of implantation as the point when abortion  becomes possible. Many people were startled that the Attorney General appeared to upstage the theologians on the thorny question of when human life begins. Practical rather than philosophical reasons have produced the formula. If implantation is taken as the starting point for this Bill on grounds of practicality because of the difficulties of proving cause and effect in specific cases, surely the same issues of proof would arise when any post-implantation pill is administered. Yet the Government justifies banning these drugs as chemical abortifacients while justifying the widespread availability of the morning after pill.
The third question relates to the Government's procedure. Unlike the case in the Good Friday Agreement, this constitutional amendment will have effect from the day it is signed into law by the President. As and from that day it will require that the unborn in the womb shall be protected in accordance with the provisions of an Act that does not at that stage exist. Essentially, therefore, a section of the Constitution, which has no meaning or effect, will be given meaning and effect by an ordinary Act of the Oireachtas coming into force at a later date. Does this not run contrary to every constitutional principle?
It is clear that the level of detail needed to deal with this issue is more appropriate for ordinary legislation than for direct insertion into the Constitution. At least one reason is because ordinary legislation can be amended more easily if it proves necessary. However, in this case the Government proposes that its Bill should be as cumbersome to amend as the Constitution itself.
Section 1(3) of the proposed Act defines “medical practitioner” as meaning a “person permitted for the time being by law to practise as a medical practitioner in the State”. Any medical practitioner, as so defined, will be entitled lawfully to terminate a pregnancy under the Bill, if he or she has formed in good faith a reasonable opinion that it is necessary to prevent a real and substantial risk of loss of a woman's life. Presumably a more specific definition was avoided in the context of a statute which itself will be so difficult to amend. Even the slightest unforeseen error in the drafting of the Bill would require yet another referendum to correct it.
The interpretation of “medical practitioner” seems to have been drafted on the assumption that Irish law permits some people to practise medicine and prohibits others from doing so. However, this assumption is false. There is no law that prevents any of us from setting ourselves up as medical practitioners. The only ban is on us holding ourselves out as registered medical practitioners, that is, persons registered in the General Register of Medical Practitioners established under section 26 of the Medical Practitioners Act, 1978.
Under the Medical Practitioners Act, 1978, the Medical Council maintains a register in which suitably qualified persons are entered. They are then referred to as “registered medical practitioners”. It is an offence to make a false declar ation in order to be entered on the register or to misrepresent oneself as registered if one is not. In addition, the Medical Council has powers to suspend doctors from the register or to apply for them to be struck off, on grounds of unfitness to practise. At the same time “complementary” and “alternative” medicine thrive here. Alternative medical practitioners practise lawfully in this State, provided that they do not claim to be what they are not – registered medical practitioners. There is no rule in Irish law which prohibits unregistered persons from practising medicine.
If one asks then, for the purposes of the draft Bill, who is permitted for the time being by law to practise as a medical practitioner in the State, the answer is anyone. Unregistered medical practitioners may not be able to prescribe medicines but they will be able, under this Bill, to advise as to the need for a pregnancy to be terminated and to carry out such a termination themselves. The defect in drafting which I have highlighted may be small and easily corrected but its effect if it were not spotted would have been to drive a coach and four through the Government's Bill.
The point must be that despite rigorous scrutiny in the Attorney General's Office, at the Cabinet sub-committee and at Government itself, and despite also the fact that this form of words has now been in the public domain for well over a fortnight, this error has so far gone unnoticed. What would have been the situation if it had entered into law? If this interpretation is correct, we would have ended up, possibly, with the most liberal abortion laws in western Europe.
Whatever else this may be, the Bill does not amount to an attempt to deal comprehensively, even in terms of a criminal statute, with the protection of life in the womb. Leaving aside the issue of abortion for the moment, the Legislatures of most other common law jurisdictions have recognised the deficiencies of the criminal law in identifying and punishing threats to unborn life.
If this legislation was truly attempting to fulfil a constitutional imperative to defend unborn human life, it would make an attempt, as has been done in other countries, to update and reform our homicide rules so as to close the identifiable loopholes that have given rise to difficulties elsewhere and are bound to do so here. If this opportunity were taken we would be enacting rules of law to clarify the circumstances in which liability under the law of homicide is imposed in respect of a variety of acts done before or during childbirth.
What we have here is a Bill that is legally and constitutionally flawed. It is one that attempts to reduce the right to life of women. It does nothing to tackle the daily reality of so many thousands of Irish women who travel abroad to seek the help they are denied at home. It seeks to overturn the decision made by the Irish people in 1992, a free decision exercised in this independent Republic in which we are happy to live.
Like many other people, I watched the funerals of Kevin Barry and his comrades that took place  recently. These men fought and died to give us independence and freedom. They helped to create this Republic. Thanks to them we live as a free people enjoying our prosperity and our new found confidence. Their sacrifice was made in order that we could win self-determination over our destiny and could build a State that would meet the needs of our citizens and reflect our dreams and ambitions. We take pride in that independence and in our success as a country. Yet for thousands of Irish citizens Fianna Fáil has only one answer. Despite that great tradition, for these thousands of Irish citizens, it has one answer when the question is raised. The answer is this: when you are in a crisis, when you are desperate and in need do not turn to us for assistance. Far from meeting their needs this great Republican party offers only one solution to these Irish citizens – take yourselves off to the old enemy. Britain will provide you with the safe professional help that we deny you. English doctors will provide the care for Irish women, even when their lives depend upon it.
Fianna Fáil wants to protect the right to travel and will let Irish citizens travel. Hopefully they have the price of the fare because if they cannot afford to travel, as many women cannot, that is hard luck. Essentially, that is the Irish solution to the Irish problem. It is not a new one but what is being done in this Bill is to restrict further the rights of Irish women.
When this Bill becomes part of public discourse and young people have an opportunity for the first time to debate the reality of abortion and when those hidden repressed voices of women who have had this experience are finally heard then we shall have a real debate and will have to face hard realities. Instead of that domineering bullying that is encompassed in the Bill we will get the truth about women dealing with crises in their lives that no man ever has to deal with. I look forward to that debate. I spent time at the hearings of the All-Party Committee on the Constitution. Those hearings were valuable in terms of providing much information in a methodical and orderly fashion. We heard from men from religious bodies and from men from the legal profession. A few women were present but not one Irish woman felt brave, secure or comfortable enough to tell us her story and to talk about her life experience. What is it like to be 22 years of age, in an unplanned, unexpected pregnancy and without support and being told to go away to another country where you will know nobody to get the professional help you seek? I heard one woman who felt secure enough talk about this at a meeting. She said she got the information on how to get an abortion off the toilet door in the ladies' lavatory in Trinity College. Fortunately, her boyfriend was supportive and helped her to go because she knew she wanted an abortion. While people may talk about social abortions or theological abortions, women will have abortions. This young woman went to Britain. When she was leaving after the procedure was over the  doctor put her on a course of antibiotics which worried her. She asked the doctor if she had an infection to which he replied: “No, but you are Irish. We give all the Irish girls a dose of antibiotics because they do not go back to their doctors when they go home and the risk of an infection is much greater as a result”. That is the reality of abortion, not what is contained in the Bill or notions about restricting the right to life of women.
If the referendum is held, I believe it will ultimately be defeated. However, I hope the benefits of the referendum campaign will be that the truth will emerge, that we will discuss the reality as it is experienced by thousands of citizens and that we will begin to confront that reality as legislators and as parents with a responsibility towards the younger generation.
Minister of State at the Department of Education and Science (Mr. O'Dea): I wish to point out to Deputy McManus that the right to travel is not something exclusively supported by Fianna Fáil. The people voted the right to travel into the Irish Constitution in 1983 and she supported their choice.
Whatever one may think of the Supreme Court judgment in the X case, there is widespread agreement with the observation of Mr. Justice McCarthy that nine years after the 1983 referendum had been passed by the Irish people the delay in introducing legislation to flesh out the implications of that amendment to the Constitution was not only unfortunate but inexcusable. Those remarks had considerable force in 1992 but they have even greater force now and the strength of their import increases with each day that passes. The Governments which came to power following the 1983 referendum, including that in which Deputy Dukes played a prominent role, could, from one point of view, be accused of cowardice in failing to deal with this matter. The Government of which Deputy Dukes was a member was succeeded by a minority Fianna Fáil Administration and, subsequently, one dominated by Fianna Fáil.
It is true to say that, in 1992, the then Fianna Fáil led Government made an attempt to tackle this issue by way of constitutional amendment. Unsurprisingly, that attempt was not successful. However, this was not, as Deputy McManus  would have us believe, because everybody in Ireland suddenly decided that the judgment in the X case was wonderful and should be supported by two thirds of the people. Deputies will recall the charged atmosphere in which the debate took place in 1992 and, in my view, the main characteristic of that debate was that matters were misunderstood. The Government's attempt to explain to the people what it was attempting to do at that point was marred by misunderstanding.
People, including some members of the clergy, who advertised themselves as “pro-life”, represented to the Irish people – particularly those who saw themselves as enlightened and liberal – that the Government of the day was trying to impose a regime similar to the current Taliban regime in Afghanistan. We were accused of using the law to impose the religious mores of a certain section of society on the population as a whole. That is what people who liked to think of themselves were led to believe. On the other hand, those who regarded themselves as pro-life were led to believe, particularly by some of their spiritual advisers, that what was about to engulf the country was a tidal wave of abortion and that the Government of the day was using the amendment to the Constitution as a fig leaf designed to create an illusion that it was trying to take action when in reality it could not do so.
The circumstances in which the current proposal is being brought forward could hardly be more different. The Minister has outlined the exhaustive process of consultation, deliberation, analysis, study, etc., which has led, during the past four years and three months, to this proposal being advanced. The arguments in the interim have centred around what type of response would be appropriate, namely, should we just legislate or was it necessary to have another constitutional amendment? The situation was seen as a dichotomy – there would either be one or the other. The people who advanced both arguments were wrong. Those who advocated a simple constitutional amendment were wrong because it has now been demonstrated beyond argument that inserting a simple, direct phrase into the Constitution will not resolve this problem because it is far too complex. I served as a Minister of State in the Government which introduced the constitutional amendment in 1992 and I recall that people on the pro-life side, who had access to extremely good legal advice, submitted many different phrases to the Attorney General's office but, alas, they were always informed that if these phrases were considered in a certain way, the Supreme Court could arrive at a judgment similar to that which it reached in the X case.
In my opinion, those who argue for a legislative response without constitutional amendment are equally wrong for two reasons. The first of these – Deputy Gay Mitchell recognised it – is people's belief that this issue is too important to be left solely to the legislators. I believe it was Lloyd George who said that war was too important a matter to be left to the generals and  the people believe – I tend to agree with them – that this matter is too important to be left solely to legislators.
Mr. O'Dea: I agree with Deputy Mitchell that there is a legitimate concern abroad that if a matter is dealt with by the House simply by way of legislation it will be open to change in the future – this is particularly true when one considers what might be the Government of the day and on whom it might be obliged to rely for support – without any reference to the people. The latter are saying that this matter is so fundamental and important that it should be referred back to them in the event of any changes being made. In my view, that is a perfectly reasonable proposition.
There is another reason for constitutional intervention in this matter. I disagree with the judgment of the Supreme Court in the X case. Unlike certain parties in this House, I am prepared to state my position in unequivocal terms. I fundamentally disagree with the notion that the threat or possibility of suicide should be a ground for allowing an abortion – the deliberate destruction of a human foetus – to take place in this jurisdiction. That is my sincere, genuine and honest belief. Even if we legislated for this matter and put in place what could be regarded as safeguards, we will be obliged to rely on the subjective of a practitioner in a field of science which is, let us face it, quite inexact. One can measure whether a woman's life is in physical danger – that has been accepted and is current medical practice – but it is impossible to ever objectively measure whether somebody is going to commit suicide. The Minister has already outlined that fact.
Deputy McManus painted a heart-rending picture of somebody's daughter who was raped, who had an unwanted pregnancy and who, perhaps, did not have the fare to travel to England and stated that we would condemn her to the possibility of committing suicide. The Minister referred to the relevant statistics in some detail and they prove that if we provide for suicide as the basis for somebody to seek an abortion, at some stage – it has not happened yet and I will explain why in a moment – there is a strong probability that we will eventually have in Ireland a regime of abortion on demand. The Minister indicated the number of abortions carried out in the UK last year because pregnant mothers said that they felt suicidal and their assertions were accepted. Is anybody in a position to say the number of cases in which what these women said was  not true? How many innocent unborn lives were destroyed because this was part of the law in Britain?
People will say that this is the law as a result of the Supreme Court decision in the X case and there has been no rush to avail of it in the sense that people have presented themselves to their medical practitioners and stated they are suicidal and, therefore, require an abortion. The reality is, however, that this would be a fruitless exercise as matters stand. The existing code of ethics of the Irish medical profession is, in my opinion, the only thing that stands between the current legal position in this country and a slide into a situation where one has abortion on demand. There is no situation in a crisis pregnancy where certain action has to be taken and where one can have total and absolute mathematical equality of the life of the mother and that of the child. If the life of the mother is in mortal physical danger, then certain actions have to be taken even if that inevitably results in the death of the child. However, saying that is not inconsistent with saying that we must afford the greatest possible measure of protection to both the mother and the child in a pregnancy. It is my contention and the view of the Government that the judgment of the Supreme Court in the X case did not provide for that. The state of the law as a result of the decision in the X case exposes innocent unborn life in this country to a mortal danger. The only matter standing in the way of that danger becoming a reality is the current code of practice, and I stress the word “current”, of the Irish medical profession. As Deputy Gay Mitchell said, that can change and is liable to do so.
That temporary barrier would be further weakened by further legislation based on the flawed judgment of the Supreme Court. Any political party which is willing to sit back and allow the medical profession to stand in the way of something it cannot face up to is being dishonest. Any Government which would allow that situation to continue indefinitely is hardly worthy of the name.
The Opposition response to this matter is curious to say the least. In 1992, the Labour Party adopted as a policy position that it believed in legislation to bring the effect of the X case into law. Suddenly the Labour Party found itself in Government. It was not just part of one Government but two, though it became part of the second by accident. The life of either Government could not have carried on without the  Labour Party but nothing was done. I was Minister of State in one of those Governments and I say without equivocation that the issue of dealing with the Supreme Court judgment in accordance with pre-Government Labour Party policy was never even mooted. There was not a tittle about it. When grasping the nettle was mooted, the Labour Party proved more elusive than Macavity the Mystery Cat. It ran away from it faster than the British Army at the Battle of New Orleans. It did not want to hear about it. That was its attitude when it had a chance to do something about it.
Deputy McManus made a heartrending speech about an unfortunate girl who was raped and pregnant; she could not go to England and she could be somebody's daughter. That unfortunate girl would have had no recourse to any medical treatment in Ireland during the Labour Party's time in office. The code of medical ethics of the Irish medical profession dictated that and it could only have been changed by legislation. Why did the Labour Party not change that by way of legislation? Why did it not provide for that imagined poor unfortunate when they were in Government for four and a half years?
Mr. O'Dea: When the Labour Party went back into Opposition, suddenly its latent liberalism came flying to the boil again and the policy was reincarnated. It then advocated that the next Government should do what it had run away from and that it would reserve for itself the right to criticise the Government for doing what it had consistently, and with intent aforethought, funked and avoided for four and a half years. That is not a very edifying spectacle for a party that is supposed to represent a certain point of view nor is it a very ethical posture.
The recent Labour Party conference passed a motion, if I interpret the English language correctly, looking for an abortion regime in this country which would literally constitute abortion on demand. Deputy McManus was asked about this on television. Let us recall that Deputy McManus was, in her previous incarnation, a member of Democratic Left, which is now sadly expired, and was very liberal on abortion. Her views were exactly in line with the motion passed by the Labour Party conference. Yet she stated on television that she voted against that motion. Why has she changed policy?
We have seen much emotion and nit-picking and heard argument about the details of words. What we have not heard is where Labour or Fine Gael stand on this issue. I will be as charitable as I can to the Fine Gael position, as the people in  their wisdom have not elected that party to Government for 20 years.
Mr. O'Dea: Therefore it does not bear any direct responsibility, not having been elected for 20 years. I will listen to Deputy Dukes with courtesy. He should listen. The most charitable description I can find—
The kindest description for the Fine Gael position on this is schizophrenic, though I do not want to be impolite to schizophrenics. I am being deliberately polite in saying schizophrenic, as schizophrenics only have two sides while there are more sides to the Fine Gael approach than there are in the Galtee Mountain range. It depends on who one meets and what day one meets them; sometimes it depends on what hour one meets them.
Mr. O'Dea: As its relevance as an Opposition party diminishes with every passing day, it scratches around frantically, looking for anything to make it look relevant on any of the great issues of the day. It has picked the wrong issue here with which to play politics. That is the reality. It seems to make no distinction between the fundamental issues and the mundane day to day matters.
The battery of senior counsel who now seem to be the sole occupants of the Fine Gael engine room, such as it is, could only come up with 34 questions for Deputy Noonan. I am surprised, given the ability of those people. If one gave any country solicitor a sentence in English, and I heard the Chair deliberate on matters such as this, then in a day he will come up with 34 questions. That is the reality.
Mr. O'Dea: This carping about detail and talk of flaws is the last refuge of those bereft of policy or who have no stance on a particular matter. It is the last refuge of those bereft of a clue as to where they stand—
We have had four and a half years of deliberation, in which Fine Gael participated. We have  parsed, analysed, debated, deliberated and agonised over this for four and a half years. Much of that took place in the full view of the nation on television. What is the Fine Gael response at the end of the day? It wants three more months. Is the main Opposition party so bereft of policies and ideas that it has to advance such threadbare arguments?
I always listen carefully to Deputy Mitchell because I have great respect for him. His opposition to the Bill consisted of stating that a medical practitioner is not defined as registered; the Supreme Court would have more scope for interpretation; the fine was unspecified; the press conference was hurriedly and unexpectedly called, after four and a half years; the type of records to be kept by medical practitioners are not sufficiently defined; and if something is not illegal, does that mean it is legal?
That is the level of the main Opposition party. Deputy Mitchell's final shot was that this is flawed and that we should not be protecting legislation with the Constitution because if the legislation turns out to be flawed, one will need another referendum to change it. If one took that argument to its logical conclusion we should never amend the Constitution, as the wording of the amendment might be flawed and we would need a referendum to change that. To take it further to its illogical conclusion, we should not have a written Constitution at all because something in it might subsequently turn out to be flawed and we would need a referendum to change it.
All branches of the medical profession have expressed support for this Government proposal. That is not surprising either because I know the medical profession was confused by the uncertainty about the state of the law. That caused great worry among the profession, and among pregnant women, many of whom were suffering sufficient distress already. That aspect is one on which even the Opposition, in its confusion and in its search for a stance, should agree with us and which it should welcome.
Mr. O'Dea: There are people here who support abortion. I know where they are coming from, although very few of them have been prepared to state their position publicly. The main public criticism – I take no notice of the Opposition because I have described its performance – by commentators has been to accuse the Government of a NIMBY approach – not in my back yard. They say there are 6,500 unfortunates who went to England last year for abortions and the Government is willing to let them off while it continues whistling past the graveyard, but the fact is that the logical conclusion of what they are saying is that since this is happening near us and all  around the world, we should introduce it immediately. There are many things which we have democratically decided should be illegal here which are legal elsewhere. The right to travel is absolute. We do not – nor, in practice, could we – put up road blocks or checkpoints to stop people travelling out of this country on the basis that we think, feel or suspect that they are going to do something legally abroad which they cannot do legally here.
This Government is the first since 1992 which has had the guts to tackle this emotive issue. There will be no victory. Nobody will be absolutely satisfied. It is not like The War of the Roses, where there is absolute victory on one side and total humiliating defeat on the other. It is, by definition, a compromise. It is something on which we have sought consensus. I would appeal to the Opposition, even at this late stage, to at least tell us where it stands on the question of suicide, on the question of the Constitution protecting legislation and on the substantive issue—
Mr. Dukes: The Standing Order under which Members of this House are limited to 20 minutes on any Bill is stupid. It is inappropriate for a Bill of this kind, although I must recognise that part of the reason it was brought in was that we occasionally get treated to bouts of knockabout comedy like the one in which the Minister of State, Deputy O'Dea, just indulged.
The Government has concluded that there is no simple sentence or paragraph that can be inserted into the Constitution which, by itself, would amount to a balanced, effective, legal response to the complex medical and legal issues which surround the protection of human life in pregnancy.
I agree. The Minister is entirely correct. However, what the Government has done is to bring in an excessively complex mechanism, an amendment to the Constitution and the text of a Bill, a Bill within a Bill, which the Oireachtas can  either pass or reject, but not amend. The Oireachtas cannot amend that Bill once it has been passed; it can be amended only by a referendum of the people.
Mr. Dukes: It is a very odd procedure and has been adopted for very odd reasons. I do not expect the Government to produce satisfactory reasons for the many aspects of this Bill, the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, which I find objectionable. I say that having very carefully read and re-read the Taoiseach's responses to the 34 questions which Deputy Noonan posed on the various issues arising. I do not for a moment believe the Taoiseach drafted these responses, but he has set his name to them and made them his own. I assume the Minister for Health and Children, the Minister for Justice, Equality and Law Reform and the Attorney General had substantial roles to play also in the drafting of those responses. That worries me because I find both the formulation and the tone of those responses deeply disturbing. A strong streak of misogyny runs through those responses. At no point do they show any understanding of the concerns of a woman in what we now call a “crisis pregnancy”. Still less do these responses show any compassion. The whole tone is mechanical, cold, technocratic and dismissive of any hint of emotion. These responses are clearly based on the proposition that hard cases make bad law. They totally ignore the equally valid proposition – we have a full illustration of it in the context of this Bill – that bad law makes hard cases. God knows, we should have learned that by now in this context.
As I read it, the Bill sets out to do three things directly and one thing indirectly. It sets out directly: to define abortion; to remove from the Constitution the provision that a risk of self-destruction can be a ground for abortion; and to give legislative – we could call it “quasi-constitutional”– cover to current medical practices in relation to the termination of pregnancy. It sets out indirectly to legalise the use of the “morning after” pill and IUDs.
I am not at all convinced that we need a referendum to define abortion, as it is defined in this Bill, to give legislative cover to current medical practice or to permit the use of the “morning after” pill and IUDs. Each of those three things could be done within the framework of the Constitution, as it stands, by appropriate legislative action. I reject the Government's contention that a constitutional amendment is necessary to do these things, since it amounts to nothing less than a capitulation to the lobby which has contended for 20 years that legislators cannot be trusted on these issues. This, we should remember, is the same lobby which got even the presentation of its own case entirely wrong in 1982, which rejected  advice about the potential effects of its actions and which, ever since, has been endeavouring to find a way of rectifying that mistake without once admitting the error in the first place. I reject that view. I reject the Government's capitulation to it. I reject the Government's attempt in this Bill to fetter the Houses of the Oireachtas by presenting to them the text of a Bill which they can either accept or reject, but not amend. I reject the idea that any future amendment to the proposed Bill can be effected only by a further referendum. This Government is proposing that the Houses of the Oireachtas abdicate their constitutional functions in this matter. I did not get elected to come in here to abdicate my functions in that way.
Mr. Dukes: I want to contrast that with the proposal in this Bill within a Bill to allow the Government to do certain things by Order. The Minister told us this morning that these Orders are in a form where they can be rejected by a motion in both Houses of the Oireachtas within 21 days of their being passed. I have been a Member of this House for more than 20 years. Not once have I ever seen an Order Paper of this House which contained a reference or a proposal to debate an Order made by any Government in that form. It is only by being put on the Order Paper by the Government that such an Order can be debated. There are reasons for making those Orders in certain cases; they are far more limited than the current practice. In the case of this Bill, I can guarantee that if that is passed, no Order on foot of that made by any Government, especially if it is of the mind set of the present Government, will ever have a snowball's chance in hell of coming before this House to be debated. Therefore, the provision which states that this House can have some function in that is entirely unreal.
The definition of abortion in this Bill within a Bill could be by way of a straightforward amendment to the relevant sections of the Offences Against the Person Act, 1861. In the Government's response to Question No. 8 posed by Deputy Michael Noonan, I find the statement:
There is nothing to prevent the Government from proposing the necessary amendment to that Act. Such an amendment would fall perfectly within the function of legislation as envisaged in Article 40.3.3 of the Constitution as it stands.
If that amendment were made to the 1861 Act it would have the same effect in relation to the use of the morning after pill and IUDs as the infinitely more complex measure now proposed by the Government. It is the definition of abortion contained in the Bill within a Bill which removes any doubt as to the legality of the morning after  pill and IUDs. The same effect would be achieved by a simple amendment to the 1861 Act.
The Government claims the effect of section 2(2) of the Bill within a Bill is to give legislative cover to currently accepted medical practice. On the face of it, that is true. As with the definition of abortion, it seems that the same effect could be achieved by inserting this subsection, or most of it, into an amendment to the 1861 Act; we would get exactly the same effect by a straightforward amendment to the 1861 Act. In fact, the measure proposed by the Government is not quite as clear as it pretends. It gives legislative cover to whatever happens to be the currently agreed ethical standards adopted by the medical profession at any given time. If we do what the Government proposes, we will not simply give legislative cover to a defined set of standards in force today, we will give legislative and, indeed, quasi-constitutional cover to whatever those standards happen to be at the time of the passage of the legislation and to any changes that might subsequently be agreed by the medical profession, whether those changes be in either a more liberal or in a more conservative direction.
The Government proposes that we hand over an unknowable power to the medical profession to decide what those standards would be. It is a blank cheque to the medical profession, which is not a desirable way to proceed. I do not say this out of any distrust or disrespect for the medical profession, quite the contrary. I do not believe that this Legislature should pass such a burden to the ethical mentors of the medical profession. Why does the Government not propose, for example, to enshrine in legislation the currently accepted formulation of accepted practice by the medical profession? Why does the Government not enshrine such a formulation in legislation which can, if necessary, and on the advice of the medical profession, be amended in the ordinary way in the ordinary course of legislation with which we deal daily in this House? The answer is that the Government is afraid to take on its responsibilities and that it has caved in to pressure groups who, in the face of their own mistakes, still insist that legislators cannot be trusted. The Government's proposal is both a debasement and a perversion of the proper role of the Legislature.
The Government wants to roll back the basis of the “X” case. Nowhere in the 20 page response to Deputy Noonan's 34 questions is there any indication that the Government has any understanding of, or sympathy for, what must have been a deeply traumatic experience for the young woman involved in that case. The Government's comment on this in the framework of the response to Question No. 7 is to say, in relation to the threat of suicide constituting a real and substantial risk to the life of the mother:
. . . it is noteworthy that the only occasions upon which it has ever been suggested that threat or risk of suicide was a justification for having an abortion within the State were  occasions upon which individual women were being prevented against their wishes from exercising the freedom to travel to another State.
The Government's proposals have been specifically drafted with a view to ensuring that the non-recognition of the risk of suicide as a ground for a lawful termination of the life of the unborn in Ireland does not result in persons who would otherwise be free to travel abroad being refused permission in any circumstances by any Court exercising personal jurisdiction over them from doing so.
That is a hell of a mouthful of a sentence. The Government is saying that its answer to a suicidal disposition on the part of a young woman with a crisis pregnancy is to say to that woman, “buy a ticket to England”. I find that absolutely appalling. The Government's response goes on further:
Mr. Dukes: It is worth noting that there is a clear implication that a health board can form a judgment on the reality of suicidal intent – otherwise why would the Government be talking about this – something which the Government suggests it cannot or should not do itself. There is here an implicit admission of the Government's disingenuousness in the presentation of its case.
It is clear that the Government does not trust anything that might be said about her state of mind by a woman in a crisis pregnancy. That is why it intends to remove the suicidal intent basis from the Constitution. That is made very clear in the Government's response to Question No. 14 from Deputy Noonan where it is stated that it is the Government's view that:
. . . the medical consensus in the medical profession is the only thing which now stands between us and the de facto introduction of “social abortion” in this country. The legislative vacuum which now exists must be filled. If legal provision were made for suicide risk, a system of psychiatric assessment and court supervision would, almost inevitably, follow. If that were to happen, even if it were initially done on a narrow basis, the scene would be set for a gradual introduction of “social abortion” in Ireland.
 What that says is that it is the Government's belief that women with crisis pregnancies and their psychiatric assessors would systematically and falsely claim suicidal intent in order to secure abortions. Such a view would be perfectly consistent with the streak of misogyny that runs all the way through the Government's responses to these questions.
Mr. Dukes: It also displays a fine contempt for a particular branch of the medical profession. Furthermore, it ignores the fact that, notwithstanding the judgment in the “X” case, there has not been any evident disposition to seek abortions here on the ground of suicidal intent, in accordance with the jurisprudence. Although the law and jurisprudence state that the ground available in the “X” case is available to women here, nothing is being provided. Even if someone were to request an abortion on those grounds the service is not being made available. It is clear the Government has set its mind against taking the word of a pregnant woman or her psychiatric assessor.
The reference in the passage which I have just quoted to “court supervision” is, I suppose, understandable. What is not understandable – rather entirely deplorable – is the tone of the response by the Government to Deputy
Noonan's Question No. 16, “What will be the position of a woman who is pregnant as a result of rape under this legislation?” The response to that question contains a series of legalistic questions which are described in the Government's response as “very human issues”, but which make no reference to the feelings of the woman in the case or to the fact already well known – the Minister of State can quote chapter and verse on this – that there is abundant evidence that many cases of rape go unreported because the victims cannot contemplate the idea of adding further trauma to what they have already suffered. The Government chooses simply to dismiss all that and say it is not a relevant consideration in anything we do about the law or the Constitution in this regard.
As far as I can determine, the Government's case for rolling back the judgment in the X case rests solely and entirely on the proposition that in some way the X case opens the way for what the Government chooses to call social abortion. The term “social abortion” is a new one to me and one which I believe will be deeply offensive to many women who find themselves in crisis pregnancies. It is another sign of the Government's callousness that it seems to make no distinction between women who are emotionally traumatised to the point of feeling suicidal as a result of a crisis pregnancy and what I suspect is a small minority of women in affluent western societies who unwisely choose to treat abortion as another form of contraception.
Mr. Dukes: Thank you, Sir. The political and social frameworks of those countries and regimes are and were vastly different from the society in which we live. All that I have read and heard about conditions in those societies and regimes indicates that, in the final analysis, women who found themselves having a series of abortions never undertook them lightly and were seriously traumatised by the complex of issues surrounding their individual cases. That has been the case, and may still be to some extent, in much of central and eastern Europe and Russia, and it is still the case in China.
In all those cases, poverty, the lack of easy access to practical methods of contraception and low educational standards were important factors in determining behaviour. In some cases, political repression is or was a major factor. In all cases, most women felt they had little choice in the matter. Most are traumatised to a greater or lesser degree. Very few of the people who have experienced it would view what the Government chooses to call social abortion as a desirable norm and there are very few cases in the developed western world where there is any substantial body of opinion that would propose what the Government chooses to dismiss as social abortion as a norm.
Since the matters the Government sets out to do in this complicated proposal other than the rollback of the X case can be done by legislation, the honest thing for the Government to do, if it really wants to roll back the X case, would be simply to propose an amendment to modify Article 40.3.3º accordingly. In that way, the electorate would be faced with a very clear issue rather than the complex matters raised in this Bill. I have no doubt that the electorate would be capable of dealing with that question, especially if we were in a position where the definition of abortion, the protection of current medical practice and the use of the morning after pill and IUDs had already been dealt with by legislation. As it happens, the electorate rejected such a proposal in 1992 but if the Government is serious  and honest about what it wants to do, it will put that proposal again.
In choosing the complex formula which is before us, the Government has unnecessarily obscured the real issues. It has proposed a legislative and constitutional monster which could, in the future, be prayed in aid by any group, which, like the sponsors of the original pro-life amendment, decides that it knows better and is more to be trusted than legislators duly elected in democratic, constitutional general elections.
Mr. N. Ahern: I fully support this measure from the Government. It is a reasonable, sensitive and intelligent way of dealing with an issue which has caused great concern and anxiety over a number of years. It is a move which has been a long time coming. In the view of many people, the process to get to this point has been very slow but there has been a great deal of consultation, which the Minister outlined this morning, including the Green Paper, the All-party Committee on the Constitution and the Cabinet sub-committee. It was a long and slow procedure but it was well worthwhile in that all political, medical and other representatives in society were given the opportunity to be involved and to give their point of view.
I do not know if we can ever please the Opposition. For years we were told that this was a complex medical and social issue and that no simple measure can solve the problem, yet when the Government comes forward with a proposal, after deep consideration, Deputy Dukes says it is not necessary and that it could be done by way of a simple amendment to the 1861 legislation. The Government policy has been deeply thought out. The legislation enshrined in the constitutional amendment and the setting up of the caring agency takes account of the best views that have come forward, specifically from the all-party Oireachtas committee.
Mr. N. Ahern: —and at the time, it was successful and has kept at bay the fears expressed by many people at that time. We owe a great deal of thanks to the good sense of the medical profession ever since. People in the medical profession, of different shades on this matter, deserve our thanks. I would not extend that to  some people in the legal profession who seem to spend half their lives trying to dig up cases that could cause difficulty and raise legal questions to which the answers are not readily available.
Mr. N. Ahern: There are people in the legal profession who always seem to have an agenda, but perhaps their job is to come up with difficult questions that have not been thought of previously. The decision of the people in the 1983 referendum was clear and there was no doubt about what people wanted. They wanted to outlaw abortion while recognising the equal right to life of the mother.
Many people believe abortion to be the great scourge of our time. Many have strong religious views on it but outside of that it is a major human rights issue. It amazes me that people who are champions of human rights in regard to issues in different parts of the world do not regard the protection of the life of the unborn as a human rights issue. It is a human rights issue and I very much welcome this decision.
The X case decision was amazing to the people who voted for that referendum in 1983 and thought they had given a very clear view. Accepting that the courts are there to interpret the laws, people still found it extraordinary to be told that, when they voted one way, they really meant to vote the opposite way. Why do people criticise the principle of going to the people in a referendum? Allowing the people to choose rather than operating entirely by legislation is the exercise of democracy in its purest form. I cannot understand the position of those who say that the voters have to be saved from themselves, that somebody else on high knows better. Why do some people try to avoid a referendum, which is the purest form of democracy?
The Labour Party amendment, particularly section (f2>c), opposes the Government Bill on the grounds that it seeks to overturn the decision taken by the people in 1992 upholding the judgment of the Supreme Court in the X case. While I accept that in 1992 people from both sides voted against that referendum, the interpretation which Deputy McManus is putting on it is quite ridiculous in trying to claim credit for that defeat and saying that was the decision of the people. That measure was defeated in 1992 because a majority of the people on the pro-life side saw it as limited abortion at the time.
Mr. N. Ahern: People from both sides voted against it but the vast majority of those voting against it were from the pro-life side, because  they saw it as limited abortion. Perhaps we are all more enlightened nine years later and perhaps we now realise it is not just a pure “Yes” and “No” situation. For that, we can thank the All-Party Committee on the Constitution, which invited in the medical people and others concerned to tease out these issues, as a result of which certain clarifications emerged and some of the easy phrases or black and white interpretations being used previously were dispelled.
I am pleased with the initial response and support of the mainstream pro-life groups to this Government proposal. I know there are some on, as it were, the pure pro-life side who are not fully happy. Within my parliamentary party, I see myself as slightly on the conservative side, though some people might label me as being slightly more to the right. I hope we can bring people to see that this is a very fair-minded and enlightened measure by the Government. It is very much a middle-of-the-road position. If passed it will provide a good defensible position to hold back the slide towards social abortion. It is ridiculous to complain that it does not outlaw the morning after pill. No Government would ever consider doing so. People on the extreme wing of that movement who take that view and who want an ultimate yes or no may as well support the Taliban because that is the only kind of politician likely to take that rather ridiculous position.
The Labour Party has a position on the matter and is adhering to an annual conference motion. It has stated loudly and clearly that it believes in pro-choice, the right of a woman to choose. I am against that position, but at least Labour is adhering to a stated position. Some, including my constituency colleague from the Labour Party, have very quickly run away from that position but Deputy McManus is clearly proclaiming a definite position. Fine Gael, on the other hand, does not seem to have a position. Basically, according to its amendment, that party wants the issue stalled for three months so its members can have more time to make up their minds.
Mr. N. Ahern: Fine Gael is simply trying to delay the Bill by nit-picking and trying to hide behind legal reasons. It is often the last refuge of the scoundrel to come up with supposed legal points which provide a very thin fig-leaf for people to hide behind. Deputies opposite should have a little courage and stop sitting on the fence. If they cannot agree among themselves, or are tearing each other apart on this issue, they should go back, have a few more parliamentary party meetings and make a decision. It is not a new issue which has suddenly emerged, it is a matter which has been under discussion for 20 years.
Mr. N. Ahern: Most people over 30 years of age have been discussing this matter for some years and have a considered view on it. Fine Gael should make up its mind. Perhaps the liberal wing is calling the shots. To quote a recent statement by President Bush in another context, “on some of these matters, you are either with us or against us”. It is up to Fine Gael people to make up their minds and let us know where they stand.
The Government has taken the right position. It is a very complex issue and it is difficult to get a balanced view on it. In 1983, the Supreme Court was critical of the Oireachtas, in that, after the referendum, we did not introduce legislation or even consider the matter. The present approach of having a referendum in which the legislation is included will give people great trust. That is the basis for the Constitution. We do not go to the people on a daily or weekly basis on every decision or legislative measure but people like to have a say on certain fundamental matters. The Government is now giving the people that opportunity by attaching the legislation for their consideration. That is a very far-seeing move, perhaps following the headline of the Good Friday legislation. The people will know that the legislation cannot be changed without it being referred back to them.
The measure in the Bill is not new. It was the third option in the report of the All-Party Committee on the Constitution which had discussed it for many months. It protects both women and the unborn in pregnancy and it accommodates all existing medical practices. It gives complete protection to medical procedures which are necessary to avoid risks. The medical profession sought such legislation. They were concerned about the possibility of legal proceedings being taken against them for doing what they are good at – protecting the life of the mother and the unborn child. Medical people were being quoted rightly or wrongly by different groups. The all-party committee did considerable good by questioning those people and determining there is a small number of very rare cases where medical treatment is necessary to save the life of a woman. That will now be protected by this measure. I would not call that abortion. It is a medical procedure necessary to save the life of the mother. However, at least we now have the medical people saying the same thing and they cannot be misquoted by extreme groups on either side.
I was somewhat bemused by Deputy Dukes saying he is opposed to the Government measure. He suddenly claims that we could solve this prob lem by an amendment to the 1861 Act. If life were that simple, it is incredible that no Government took that measure in the past 20 years.
It is reasonable for society to want to lay down rules or guidelines on what it wants of society. Nobody is perfect. I listened to Deputy Liz McManus this morning. While people may speak with passion, I hope this debate is carried out in a calm and reasonable manner. It is a very sensitive, emotive and personal issue.
Mr. N. Ahern: For women and for the men involved. I cannot be perfect. I have a daughter too. With any law or guideline, either State or self imposed, we would all like to think we would resist temptation or pressure and stick to our deeply held principles. However, I could not say that. I cannot be sure I would not be on the plane to the UK with my daughter nor could any other person. It is not possible to be absolutely firm in one's own conviction until a problem arises. However, it is perfectly right for people to lay down what they consider to be a reasonable standard of behaviour by which to live.
Mr. N. Ahern: In every walk of life, we all have our aims and hopes. We would like to think we can live up to those aspirations but we never know until a crisis reaches our door. I would like to think that in this or another walk of life, I could live by my deeply held principles but nobody can be absolutely sure of that. That is not hypocrisy and does not take from the sincerity of people or their right to have their aspirations enshrined in law or the Constitution.
This is a very sensitive issue and not just for women. Those who claim men have no right to speak on an issue are very often the people who complain that men are not involved in family matters including the rearing and education of their children. I am not suggesting that I am the greatest father in the world – I am not. However, we are all members of society and we all have a right to our views on this matter, although I accept it fundamentally affects women. When women face crisis pregnancies one would like to think the men involved would be supportive, but sadly in some cases they are not.
The Government is setting up an agency to deal with crisis pregnancies. This proves the issue is being dealt with in a very broad comprehensive way by Government. I hope the debate will be calm and this legislation and the referendum will be passed. If so I think it will settle matters for the next 20 to 25 years.
Mrs. Owen: Since 2 October when the Government very unexpectedly published this legislation, I have been beset with a variety of emotions. My first emotions were anger, annoyance and frustration that the Government was to put us through the difficulties of having another referendum, given that the country has spoken twice, in 1983 and in 1992.
I moved on to fear and emotion for those women who would be talked about in a way that we have heard already in the House today and will continue to hear as this debate progresses. These are women who every day either make the lonely journey to England to have an abortion or make the decision to keep a pregnancy that may cause them huge difficulty. These include pregnancies caused perhaps by rape, incest or some other horrendous action and possibly influenced by their own mental infirmity.
Today, as I listened to some of the contributions in the House, I have moved back to a sense of anger. We do not need another referendum on this issue. I quote no higher authority than the Taoiseach in answer to a question from Deputy Michael Noonan, “This does not mean that unborn human life as protected in the Constitution has been reduced as regards its scope”. If that is the Taoiseach's opinion, why are we having another referendum? We are doing so because the Government made up of Fianna Fáil and the Progressive Democrats was not satisfied by the answer given by the people in 1992 and it wants to go back – repeatedly if necessary – until it gets the answer it wants from the people. How insulting is that to the people?
Deputy Noel Ahern said the people had the right to speak, and I agree. In 1992 the electorate faced three referenda. The people did not blindly vote “yes” or “no” to all three. They made targeted decisions on each issue. They agreed with the right to travel and information but disagreed with the rolling back of the Supreme Court decision on the X case. They made that decision and Deputy Ahern should not shake his head. What he is saying is if the Government puts the question in some other way, it will get the answer it wants and that the people were foolish and did not know what they were being asked. They knew what they were being asked and they said they did not want our laws to roll back the decision made where a 14 year old girl, as a result of rape, was suicidal and got the help she required from the courts. I say shame on this Government for going back on what the people said.
I am angry today because what we are being asked to do is wrong primarily for that reason, but also for many other reasons. This is a cynical hypocritical exercise by the Government. It is merely political expediency to bring forth this mishmash of a constitutional referendum tied in with legislation that will tie the hands of us as elected representatives. The answers to the questions posed by my party leader are full of vague expressions, such as, “it is hoped” and “it is anticipated”. In his speech today the Minister  used similar language. The Government does not know, yet it is asking the House to pass this Bill.
At the Government's press launch, the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, said: “I believe our debate should be proportionate”. It was a plea to us not to highlight the about turn by the Progressive Democrats. She went on to say: “Let it be proportionate, particularly in the context of the grave international situation we are currently facing”. God forgive me for being reminded of what happened in the House of Commons where a Government adviser recommended that any bad news be made public while people were exercised with the atrocities in America. This issue has nothing to do with the international situation.
In her address at the Government press launch the Minister of State went on to state: “The legislation seeks to reach out to the consensus of the middle ground and, in our view, has the capacity to garner the support of reasonably minded people”. There is no mention of it seeking to assist women or to resolve legislative lacunae, rather she acknowledges the Government is seeking to get rid of the issue, not because it is proper to do so or because it has found the right formula by which to proceed but because it hopes to garner enough support from reasonably minded people.
Speaking at the Government press launch, the Minister for Health and Children stated: “We have considered ways of moving forward which can command the support of the people”. The job of the Government is to do what is right, not to proceed on the basis of having its proposals passed by a percentage of the electorate. It should put what it considers to be right before the people and should act only on that basis. It should not act on the basis of support it may get or on the basis that it will win brownie points because it has succeeded in amending the Constitution. I am very angry at the Government's cynicism.
It is clear that the Government is acting because four Independent Deputies have demanded it. They are part of a motley crew, some of whom have acted with the best of intentions. Since 1983 they have continued to demand referenda until they get the answer they want, which does not include the saving of women's lives. Regardless of what some may say, when pregnant women are treated for a medical condition the foetus may die. The secondary effect of the treatment is an abortion and let us not pretend otherwise. The doctors and the Government are aware of the position.
Some of that same motley crew gave very bad advice in 1983 and ended up with the opposite of what they intended. What they sought then was unnecessary. There was never a need for Article 40.3.3º in the Constitution, as human life, born or unborn, was sufficiently protected by the Constitution and by our laws. Some of these people now say that this proposal is the right approach – some have yet to say it publicly – and the  Government has listened to them. The only concern is to garner their support.
The removal of the threat of suicide as a ground for seeking an abortion, which the people decided they wanted to retain, is similar to society telling women that their bodies are divided at the neck. If implemented, this proposal will mean that women can seek medical treatment when their bodies require it but if their mental condition is suicidal they will have no rights. That is the most serious insult in the Bill. Four women Deputies are present in the House and I am surprised the Minister of State at the Department of Health and Children, Deputy Hanafin, could allow this to happen. The Government is proposing to give women who are suicidal, like the girl in the X case, two options: they can commit suicide or travel to England in their suicidal condition and make the necessary arrangements to have an abortion. It is tantamount to saying that society only wants to help women if their bodies are ill, not if they are mentally ill and that illness causes as much danger to life as, say, a carcinoma on the uterus. This is the most callous aspect of the Bill.
The Bill is a gross insult to the profession of psychiatry. As elsewhere, psychiatrists in this country must undergo training and qualification as doctors. I am surprised the psychiatric profession has not been louder regarding the insult heaped upon it. In response to a question from Deputy Noonan, the Taoiseach advises that the only reason suicide is being removed as a reason for seeking an abortion is because it would require the establishment of a mechanism where psychiatrists would give advice on the suicidal condition of a woman and if that were included it would lead to what he terms “social abortion”. How did the Minister of State at the Department of Health and Children, Deputy Hanafin, allow such a term to creep into speeches by the Taoiseach, the Minister for Health and Children and other Members on the Government side of the House? It suggests that because women want to improve their figure to fit a new dress they will seek an abortion. My colleague, Senator Keogh, put it more graphically yesterday when she said it suggested that women might seek a “social abortion” between painting their nails and having their hair done.
There is no such thing as a social abortion. Women have abortions because they find themselves with unwanted pregnancies for all kinds of reasons but it is not because of social reasons, such as a social outing with work colleagues or embarking on a social trip to Liverpool to experience the new boat service from Dún Laoghaire. It is an offensive term and, as a woman, I am ashamed that any other woman, in this House or elsewhere, would allow the Government to accuse a suicidal woman, who might have to seek help from the courts to terminate her pregnancy, of allowing for the introduction of social abortion to this country. It is another reason I am so angry.
 However, I reserve my highest level of anger and cynicism for the Progressive Democrats, especially in view of speeches made by the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, and the Attorney General, Mr. McDowell, when he was a Member of this House. In his present role as Attorney General former Deputy McDowell is the chief legal adviser to the Government. I am appalled he would sanction the introduction of legislation such as this, which, as Deputy Dukes said, will fetter the Members of the House now and in the future. The courts have called on the Oireachtas to introduce legislation but if the Attorney General were a Member of this House he would be incandescent with rage if he thought a Government was removing his right to introduce legislation to this House. Yet, as Attorney General, he is recommending to the Government to do that.
In response to a question from Deputy Noonan, the Taoiseach says it would intra vires introduce legislation. This means that we, the Members elected by the people, need the protection of the Constitution to tell us what legislation to introduce. How dare he. In 1995, when speaking on the legislation dealing with the right to information on abortion services, the Minister of State at the Department of Foreign Affairs, Deputy O'Donnell, who was then an Opposition spokesperson for her party, said: “We will also table an amendment to take account of the X case, the hard cases and the rights of women for whom a pregnancy poses a risk to their lives”.
Michael McDowell said, “I completely reject the notion that any female is obliged to carry a pregnancy to a full term where conception was based on rape, incest or sexual abuse of a child.” My, how he has changed his tune. What care and concern does he have for the female obliged to carry a pregnancy for those reasons now? It has all gone out the window because of his pursuit of power and desire to be Attorney General and give the Government the advice he thinks will suit it.
The Minister of State, Deputy O'Donnell, made some other choice comments in 1995. Talking about the X case she said, “The further the facts of this case slip from our memory, the easier it is for the old absolutes to revive and gain credence.” How right she was and how easily she has forgotten she said that. She further said:
The bringing of the X case marked an all-time low in the treatment of women with crisis pregnancies. It was perhaps the most shameful and disgraceful period in Irish public life since the foundation of the State.
There are interest groups at work in our society, powerful, secretive, manipulative and extremely well-funded interest groups, who will  spy on them [the doctors] and perhaps present as agent provocateurs in surgeries to try to trap doctors into making a recommendation which they believe is not truthful or objective.
Those were her words in 1995, yet she now has the cheek to tell us she would like the debate to be proportionate. She would like it to be proportionate because she does not want us to remind her of what she said in 1995 out of care for women with unwanted pregnancies. Her sin in what she is doing now is the greatest of all because she is a woman – like many of us in the House – and has gone back on all she said. Both she and the Attorney General are people to whom the public will express its anger when it gets the opportunity to vote on this Bill.
My anger was beginning to subside until I received a copy of the Taoiseach's replies to questions posed by Deputy Noonan. They are full of inconsistencies. He says it is not proposed to interpret or redefine the term “unborn.” In a document distributed to the media when the Bill was being launched the Taoiseach said the term “abortion” was being redefined. The Government is not redefining “unborn,” but is defining when an abortion can take place, from conception, in one instance, and only after implantation in another. If it is not redefining the term “unborn,” I do not know what it is doing. The unborn are not worthy of protection at conception, they are only worthy of it after implantation. What nonsense and twisting on the head of a pin that is. I cannot understand this. The Taoiseach says the Government's proposals will result “it is hoped” in the enactment of a law which is clear as to its meaning and effects.
In the light of Deputy Noonan's question, how is it anticipated that the Government's proposals will impinge on the rights of the unborn and the mother, which are already identified? It will not. It simply makes it constitutionally ultra vires for us to pass laws. That is no big deal and it shows the arrogance of the Attorney General that he would allow a Government to put that into law. At the same time the right of the constitutional office of the President to refer legislation to the courts, if he or she thinks it unconstitutional, is removed. The Taoiseach's answer regarding the definition of the word “abortion” is as follows, “The envisaged legislation, the terms of which are set out in the Second Schedule, defines the term “abortion” for the purpose of that legislation only”. Think of the fun the Supreme Court will have. There will be one definition in one Act and another referring to another law only. The court will have to make its decisions based on this.
In answer to question No. 8, the Taoiseach said it is far too difficult to deal with many of the issues because they are subject to philosophical, moral and theological discourse. For God's sake,  most of our theologians are men and, in many instances, members of the Church.
By referring to philosophical, moral and theological discourse the Taoiseach is saying that this will be based on the considerations of those who have no right to make pronouncements on the pregnancies and unwanted pregnancies of women. The Government wants to put into the Constitution a provision which could be made, as Deputy Dukes said, by amending the 1861 Act or by introducing legislation ab initio in the Dáil for Members to discuss and amend as they see fit.
In deference to the Leas-Cheann Comhairle who is a doctor I will finish with a hypothesis. Can one imagine the outcry if we decided to legislate in this Bill for the operation of a vasectomy? If a man has a vasectomy, he is preventing a pregnancy from taking place. If the argument is stretched enough, it can be said that is an abortifacient operation because it is designed to prevent a man's sperm from managing to impregnate an ovum in a woman. If legislation were put in place regarding scrotum cancer which ruled that if a man had chemotherapy on his scrotum it would prevent him producing sperm and interfere with procreation, I can imagine the outcry. Imagine that was provided for not mere in legislation, but in the Constitution.
Members of the Government should hang their heads in shame and tell the women they are appearing to try to help that they will give them what assistance they can to prevent crisis pregnancies. The Government should give them all the advice it can instead of treating them like idiots and dividing their bodies into two parts above and below the neck.
Mrs. Owen: On a point of order, the use of the word “crudities” makes it sound as though I have been offensive in this House. Mentioning the biological, physical parts of men's or women's bodies is not crude.
We come here as legislators to lead the people and uplift the level of debate. We come here as legislators to deal with a difficult and extraordinary issue and the nonsensical, illogical, extraordinary and hysterical comments of the Deputy are no way to contribute. They reflect little credit on her as a legislator with significant experience.
Mr. Roche: The Deputy will get her opportunity. If she allows us to have our say, we will allow her to have hers. That is what is called democratic and civilised debate. That is what is called for on this particular issue, not recriminations and nonsense.
There can be very few issues facing any society that are as complex and challenging as the issue of abortion. In 1983 it was felt the people had put into the Constitution a clear and unambiguous statement providing protection for the life of the unborn, but that view was wrong. Within a few short years the Supreme Court completely reversed the generally accepted interpretation of the referendum result of 1983. With the X case and the subsequent C case further ambiguity was created. Therefore, it is incumbent on us, as a society, to address those ambiguities with the questions raised by those cases. The question of abortion is one on which there is no middle ground. It is by its very nature a divisive issue, one invariably discussed in emotional terms. Inevitably, those on either side of the debate try to demonise, misrepresent and shout down the opposing view.
There are two diametrically opposed views, which deserve to be heard. Whatever else can be said about the current proposals, the point cannot be made legitimately that there has been any shortage of discussion of the issue in the past 15 years. We have had four and a half years of dis cussion and analysis, along with a Green Paper and a report from an all-party Oireachtas Joint Committee on the Constitution, which considered a vast number of separate submissions. There is no excuse for politicians who do not know where we stand on the issue of abortion. There is no excuse for equivocation.
There has not been a shortage of analysis and it is therefore surprising that a party with such a long and distinguished history as Fine Gael should seek to put the issue on the long finger. I cannot understand it.
Mr. Roche: I fundamentally disagree with the Labour Party, which at its recent conference made a policy decision to support the prochoice policy of abortion on demand and that it should be made available in this country. At least the position of the Labour Party is now clear. I do not agree with its policy, but I am willing to concede that it has at last shown a willingness to come into the open and declare in unequivocal terms that it is a pro-choice party. I understand its position, but I do not understand Fine Gael's position, with its history extending back to the foundation of the State. I find that regrettable.
Mr. Roche: I ask the Chair to protect me from interruptions. Deputy Owen was afforded the courtesy of this side of the House, not withstanding the extremity of opinion in her speech. We, at least, listened to her. It would not be a bad thing if she were to afford us the same courtesy. She might just learn something, and then again, she might not—
In spite of the cynicism of the past four years it is astonishing that there has been some criticism of the fact that the Taoiseach has had the political courage to produce a comprehensive set of proposals at this time. It may be that others have better propositions in mind. If so, let them put them before us and we will listen to them.
The proposals that have been published are comprehensive and compassionate. They afford the Irish people a further opportunity to make a clear and unambiguous statement as to where they stand on this most difficult issue. In addition to affording the people this opportunity, we are also challenging the people with these proposals, because they go further than previous propositions. They are not as simplistic as previous approaches, but complex. We all have to accept that.
There is no single one-liner that will deal with this complex set of issues. I do not claim to have wisdom in abundance, and I may be wrong, but I do not believe that suggestions that the matter can be resolved by reverting to Victorian legislation and making some adjustments to it are of any worth. This would not be sufficient to return the Irish people to the position we believed we were in after 1983.
In 1992, the Supreme Court in the X case ruled that the termination of pregnancy was lawful in this country when there is a real and substantial risk to the life, as distinct from the health, of the mother. In other words, it introduced the issue of suicide. It is a very difficult issue to argue against. I accept that. All the arguments that have been put forward should be based on reason rather than emotion. Ultimately, some decision will have to be made on this issue. There is no option and no room for equivocation.
The judgment in the X case introduced an extraordinary interpretation of what had been enacted by the Irish people as a pro-life constitutional amendment. Whether we agree or not with the amendment of 1983 is not the issue. The  Irish people in 1983 sought to include in their Constitution a provision to protect the life of the unborn child. Due to legal imperfections in the drafting – that is widely accepted by all sides in the argument—
Mr. Roche: Deputy Olivia Mitchell will have her opportunity to speak also. Then we will know where she stands. At least allow me the democratic right to express the views of the constituents I represent. I represent a people who are pro-life, compassionate and who know the challenges. I do not come to the House to represent people who want to hide between equivocation and mud-stirring. I come to listen to the Deputy and put my points on the record and I hope that she will listen to me.
To answer the last contributor, a referendum was held in 1992 in response to the High Court decision. It sought to provide for the termination of pregnancy if there was a real, substantial risk to the life as distinct from the health of the mother. We know the result of this referendum.
We are currently faced with an extraordinary situation here. On the one hand, we have the expressed wish of the people that our Constitution should be unequivocally pro-life. On the other hand, as a result of the judgment and the failure of legislators to deal with the issue, not just in this Dáil but in previous Dáils, we could theoretically have had widely available abortion in the country without any kind of regulation. That is a fact. The only thing protecting the people from having an abortion system more open than anywhere else in the world – I was almost going to use the term “liberal” but there is nothing liberal about abortion – is the ethical standard being applied by the medical profession. However, that is not good enough. We need finality.
The idea that, somehow or other, the issue can be avoided seems to be the most dangerous approach of all. I have some respect for people in the Labour Party who have said they are pro-choice and in favour of abortion on demand. I do not agree with that policy but I respect their right to put it forward. I cannot understand or respect people who want to do the same, but will not, and  people who are pro-life, but are frightened to say so. We must come down from the fence and make decisions.
As the Members know, following the election of 1997, the Taoiseach indicated that a Green Paper would be published after he took up office. It was published is September 1999. On publication it was referred to the all-party Oireachtas Joint Committee on the Constitution. There was significant cynicism about that at the time and a great deal of criticism. There were many suggestions to the effect that we should have handled the issue shortly after the Green Paper but that, somehow, the Government ducked the issue by referring it to the joint committee.
That committee did an extraordinarily good job. I regret that there could not be solutions at the end but, given the nature of an all-party committee, that was always going to be the way. The committee conducted the most elaborate and comprehensive consultation process ever seen in the history of the nation. In all, more than 100,000 submissions were received from various organisations and individuals. At that stage the cynics said there should be some decision in this matter to give it finality. When there was a further protracted process of consultation with people before the report was published, that was also criticised. However, the approach taken by the joint committee was the right one. It allowed people to talk through the various sides of the argument and provided much more light and much less heat than some of what passes for political debate on this issue.
The joint committee published its report on 15 November 2000 and again the cynics and critics asked the Government why it did not produce a response. The current proposal is based on the work of the joint committee. The Government examined the three possible approaches suggested by the committee and devised a very complex response which, nonetheless, is the only option which can be availed of and, I point out to political critics, the only one on offer.
Mr. Roche: It is dishonest to suggest that this issue has not been discussed, debated and analysed ad infinitum to the point where we must reach a decision. The Government proposals respond to the X case but in a measured way.
Mr. Roche: The proposals offer the people the opportunity to revisit the debate we had in the middle of the 1980s. The people will either accept or reject these proposals and we will then know  finally where we stand as a nation. The amendment creates a basis for the legislative protection of human life in pregnancy. That is one of the ambiguities which existed in law in this State since the X case. The legislation will ensure the maximum degree of protection for the unborn child is provided. It will at the same time ensure a pregnant woman will receive any necessary medical treatment to protect her life. A key element of the approach adopted is that the electorate will be given the opportunity before the constitutional amendment is made to review the legislation which is necessary and which the courts have pointed out as being necessary.
I say to Deputies who have asked about tying the hands of the House that this is not a sovereign Legislature. I do not understand how Members of Dáil Éireann or Seanad Éireann could exist under the delusion that it is. Bunreacht na hÉireann makes it abundantly clear to anyone who takes even a casual moment to peruse it that the only sovereign authority in the land is the people. We are the instruments of the people; we are not above them. It is arrogance as well as an illegitimate interpretation of our Constitution to suggest that we have supremacy over the people. I suggest—
Mr. Roche: —but an arrogance towards the people which is unforgivable. The Constitution belongs to the people and not to any political majority or minority. It is their basic and fundamental law and it is entirely appropriate that the sovereign role of the people should be recognised in a matter of this significance. It would be ludicrous to refer all legislation to the people, but  legislation which goes to the very essence of human life can be appropriately addressed to the people, especially when they felt they addressed that issue as far back as 1983.
Mr. Roche: I welcome the provisions relating to the agency for combating crisis pregnancies. People have adopted a fundamentalist view on both sides of the argument and there has been an extraordinary lack of compassion. It is not just about statistics and people going on a trip to Britain for a weekend but about women who face real problems. It is something for which we must all take the blame. It is extraordinary that there have been many debates about 6,500 plus women going abroad—
Mr. Roche: When you were in Government you did nothing about it. You played a powerful role in Cabinet. You were Minister for Justice and you did nothing about it. You should not lecture me about compassion, Deputy, because when you—
Mr. Roche: —was a Minister when we all knew about crisis pregnancies and she did nothing about them. One factor that was missing and is welcome in this set of proposals is the agency to address crisis pregnancies. The level of funding is probably inadequate and a broader role is possibly necessary. At the same time, I am pleased it is proposed.
Ms O. Mitchell: I will try. Deputy Roche is correct. Abortion is a difficult and sensitive issue which is difficult to deal with and is difficult for women, their families, the Church, legislators and definitely Governments.
Ms O. Mitchell: Yes. I was referring to the Deputy as the legislator. I wish the motivation for this referendum came from a source other than a handful of Independents and a few others. Nevertheless, I accept the Government's bona fides in that what we have before us is its honest and best effort to deal with an issue which has been unresolved for almost 20 years. What Deputy Roche said is correct. A great deal of work has gone into producing a package which, on the face of it, appears to give a little to both sides of the argument in the hope of achieving a consensus and, if not that, a sufficient majority to put this matter away for the foreseeable future.
However, it is not the rights given in the proposal which are material to the outcome but those taken away. What is material for me is the proposal to reduce the right to life of women, to ask me to legislate for it and to invite women and their sons, fathers, boyfriends and brothers to vote to confirm a lesser right to life for women than they enjoy and have enjoyed under the Constitution for the past ten years and for which they voted.
Ms O. Mitchell: I am fundamentally opposed to such a proposal and I find it almost impossible to believe that in the 21st century we are being asked to consider it. This is a view which is shared by many. I hope that is clear enough for the Deputy.
Nevertheless, I am conscious that there are many, among them my close friends, who hold a diametrically opposed view, that these views are validly and fervently held, and for these reasons I, too, would like this debated in as rational, non-confrontational, non-judgmental and sensitive a manner as possible. I am old enough to remember vividly the debates in the 1980s and 1990s with their excesses and do not want to live through them again.
I am particularly conscious, as I was then, that there are between 100,000 and 200,000 women living in Ireland who made the lonely choice to have an abortion, many of them little more than children themselves. Many made the journey to England alone, in secret, confiding in no one and without the support of their families or friends. They have lived, often for many years, with that  secret because it is still a taboo subject, and now we are trying to make it a criminal one.
Ms O. Mitchell: We do not know who those women are, but they are out there and they listen to our utterances, which they view as judgment on them. If we keep this to the forefront of our minds it will help us to be sensitive and rational.
I do not seek to persuade others to my point of view on the substantive issue, not just because I know that I will not succeed but because I do not believe that I should try as it is a matter of personal belief. However, I question strongly the way in which it is proposed to deal with the issue, that is by way of legislation which is to become part of the Constitution. I do so, not on behalf of those who share my view, but on behalf of both sides of the divide since this process is as flawed for one side as the other.
At the time of the first referendum, there were endless debates about the wording, as Deputy Roche stated, and we were assured by much the same people who now assure us at the third referendum that the wording would forever prevent abortion here. However, it was that wording which was interpreted to introduce legal abortion. Then we added one sentence to the Constitution and yet we got it wrong. We all misjudged it.
Ms O. Mitchell: The point is that it meant something different from what the majority of the public meant. If there is such potential in one sentence, then what is the potential to get it wrong in an entire Bill which will become an integral part of an immutable Constitution? It is a folly beyond words because every section, sentence and clause will be liable to challenge. Challenges will not be adjudicated on by the people nor those elected to legislate but by the Supreme Court. As sure as night follows day, some of these interpretations will not be what is envisaged now nor what was intended by the Oireachtas and the people. The legislature will be able to do nothing  short of frequently going back to the public to rectify the mistakes of the previous referendum.
We make mistakes in legislation. Many Bills before the House are amendments to previous Bills and Bills are repealed, replaced, adjusted and expanded. We do it every day, either because we got it wrong in the first place, circumstances change or our thinking evolves. In this case, we will not be able to amend it as there will be no such room for manoeuvre.
Transposing an entire Bill into the Constitution has never been done before, and with good reason. It is a dangerous precedent to vote away our rights and responsibilities to amend legislation. If we had good reason not to do so before, why do we dream of doing it for the first time in an area as fraught and complex as abortion where we got it wrong once, and many would claim twice? Deputy Noonan's questions flushed out many areas ripe for challenge in the courts and there are, I am sure, others which we cannot guess at. However, they are there in the ambiguities and interpretations to which almost every clause in the Bill is subject.
In the light of the Taoiseach's responses, I will highlight some. The new Constitution would offer additional protection to the existing right of the unborn, but only after implantation. I understand the practical reason implantation was chosen as the measurable and knowable point when destruction becomes a criminal offence, but if the Taoiseach thinks that these different protections offered at different points of life will not be used as the basis for a challenge to the use of the IUD and morning after pill, he is wrong. He is offering a hostage to fortune.
Deputy Noonan raised the question of a suicidal minor in a health board's care and her right to travel abroad under the new proposal in circumstances similar to the C case. The Taoiseach gave an ambiguous reply which referred to a woman, while the question was about a minor. Even if this was not a fudge, the Taoiseach cannot categorically state that a minor's right to travel outside the State is assured.
Ms O. Mitchell: The courts will decide. A case like this will be challenged and a court will not be able to respond as in the C case, because at that time abortion was legal. Now it will be criminal as well as unavailable. It will be a brave health board that tries to defend a situation where they would spend taxpayers' money on a service abroad which is a criminal offence in Ireland. No health board would even try. The impact of this proposal will be “tough luck” to the next C case,  the mentally handicapped and the rape or incest child victim in the State's care.
The kind of thinking behind these proposals is manifest in the Taoiseach's reply and the Minister's speech. It is instructive to read the Taoiseach's replies to Deputy Noonan's questions. I wish that the public would read them. Fine Gael sought more information because if this Bill becomes part of the Constitution we want clarity about what is being proposed and why, what impact it will have and on whom. The nub of this proposal is rolling back on the X case. Everything else in it can be achieved through legislation alone. Only this measure requires a constitutional referendum and, therefore, there must be no ambiguity about what it means. All of us here remember the X case and we know that it established a woman's right to an abortion where the continuation of her pregnancy represented a threat to the life of the mother, including suicide. In other words, it encompassed the threat to life from severe physical or mental illness.
Since that case was hotly debated, a new generation of boys and girls has grown up who may not fully comprehend what we are about now. Before voting, every woman, her brother, father and boyfriend must know what is proposed, that is, that women will have a lesser right to life than they currently have and which, as a nation, we voted for ten years ago. This is a decision of monumental proportions. In effect it says that suicide is less serious, less grievous and more preferable than abortion. Is this the view of the people and, if not, why is it proposed to put it into the Constitution? Again, the Taoiseach's reply gives us some clue. He said: “If legal provision were made for suicide risk, a system of psychiatric assessment and court supervision would almost inevitably follow”.
Ms O. Mitchell: What he seems to be saying is either psychiatrists can diagnose a suicide risk or we cannot trust them not to invent a diagnosis. Yet an ordinary doctor looking after her physical health can recommend an abortion based on nothing more than “reasonable opinion” formed in good faith. Apparently no number of specialist psychiatrists could make a similar assessment of the risk to life. I am perfectly sure psychiatrists can and do misdiagnose but I am equally certain that doctors do so every day. If we are to look for the real reason for the dropping of the suicide provision we must look further into the Taoiseach's remarks, and again this one is instructive – allowing for abortion “where suicide is threatened by a pregnant woman would start an unstoppable slide towards social abortion”.
Ms O. Mitchell: I do not know what the Government thinks about women. I am sure neither the Taoiseach nor the Minister intends to  be insulting to women but where did they get the idea that women are hell bent on destruction and death? From where did this idea come? What happened to the notion of the woman as the caring person, the nurturer? The Minister said this morning; “The only real defence against widespread abuse of the X case as a basis for social abortion in Ireland is the ethical consensus in the medical profession”.
Ms O. Mitchell: Here is another quote: “A small number of exceptional cases can be exploited to allow a widescale application of abortion”. How can we trust them with anything? While I cannot find the reference, the same applies to new drugs coming on the market. There appears to be a fear that women might get their hands on them and they cause abortion. Instead of banning the drugs we are putting a ban into the Constitution. The name of the Bill is insulting, part of which reads: Protection of Human Life in Pregnancy. Who protects life more than women? Who has done it through the ages since the beginning of time? That type of language is insulting and my colleagues have referred to this insult.
To suggest social abortion exists is to completely misunderstand not just women but human nature and, in fact, nature. Everything in a woman's psyche, her makeup, drives and motivates her to guard, protect, nourish and nurture her child inside and outside the womb until the day she dies.
Ms O. Mitchell: It is an inescapable biological imperative. When a woman makes a choice to have an abortion it is because she considers it is the only choice. It is always and in every circumstance an act of desperation. I have heard women try to minimise the enormity of that decision but to them in their hearts it is an act of desperation.
To remove the real threat of suicide as a condition for allowing abortion because of the fear of a possible slide towards social abortion is based on a totally false premise, because there simply is no such thing as a social abortion. Currently, an independent woman of means can, even in her desperation, go to London, albeit alone and secretly, but she has some comfort in knowing that she is seeking a service which is, at least, legal in her own country. It may not be available in her  own country but at least it is legal. This proposal, if passed, would not stop a single such woman from having an abortion. She will still go secretly and alone but with the added burden of having a taint of criminality and the public voted condemnation of her fellow countrymen and women.
We have been accused both by ourselves and others of being hypocritical. Rather than face up to the problem we have been hypocritical in allowing our problems to be exported to Britain. What is happening now is much better than what is being proposed. I do not pretend it is the ideal circumstance but, at least, it offers legislators some room for manoeuvre when further hard cases arise, such as the X and C cases, whereas what is proposed does not leave any. The courts can interpret but the legislator cannot subsequently amend. What we have now is an extraordinary position whereby medical practice may change and so change the circumstances in which abortions are permitted, Ministers may increase or decrease the venues or locations where abortions can take place, any member of the public can challenge the provisions of the Constitution, including any changes resulting from medical or ministerial changes of practice over time, and judges can adjudicate on these. The only group left in the democracy who has no input whatsoever is the Parliament. Does this make any sense? This is a seriously flawed process. I ask Members and anybody listening to think long and hard before voting to tie our hands for ever because we will regret it and many women will live to regret it.
Ms M. McGennis: Even today politicians are running a mile from this debate. That is clear from the number of Deputies who are present and those listed to speak. That is not a criticism of those present but of those who decided they do not wish to participate. Many commentators have described the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill as a relatively conservative proposal. Perhaps they are right. I acknowledge that Deputy Mitchell had the courage to put her position on the record which is more than many have done. As she said, if the Constitution is amended, as outlined in the Bill, it will mean a rolling back of the position in the X case where the Supreme Court ruled that if it was established as a matter of probability that a real and substantial risk could be averted by the termination of a pregnancy, such a termination was lawful. The stated risk to the mother's life in this case arose because she had threatened to commit suicide if she had to continue with the pregnancy. As I understand it, this judgment means that abortion has been lawful in the State since 1992 in certain limited circumstances and if the constitutional amendment is passed that will no longer be possible. People should know that. Those listening to us should know what is being put to them. We are upfront in this Bill and in the announcements made that this will be the effect of the consti tutional amendment. People should know what they are voting for.
Ms M. McGennis: I am putting it on the record so that whoever happens to be listening will know it. The Government has stated that also. After the 1992 Supreme Court decision, three proposals were put to the people and they have been mentioned several times. The issues of travel and information were dealt with by amendments and the people decided in their wisdom that they wanted women to have the right to travel and the right to information. What was termed the “substantive issue” was rejected by the voters and was ignored by successive Governments. Nine years later, this is the first attempt to address the substantive issue. It may not be to the liking of certain parties in the Oireachtas—
Deputy McManus made a passionate plea concerning a young woman who was raped, became suicidal and did not want to continue with her pregnancy. Again, Deputy Olivia Mitchell flagged the point in relation to this which is a cause of concern to me. I would like clarification on the C case, which involved a minor in the care of a health board which decided to seek consent for her to travel abroad for a termination. I fully understand the implications of the X case, but I am not sure about those of the C case.
The young woman to whom Deputy McManus referred and those involved in the X and C cases have simply become statistics and are seen merely as being among the 6,000 plus women who travel to Britain for abortions each year. Deputy Dukes took the Government to task and stated that its response to this woman and all others who find themselves in such circumstances was to tell them to go to Britain. However, he and other members of his party have failed to indicate what is Fine Gael's response to the young woman in question. If we are to judge from the amendment to the Bill tabled by Fine Gael, that party is saying we should defer a decision for three months until the matter can be considered further in a legal sense. The view of the majority of the Fine Gael Members on the All-Party Committee on the  Constitution in relation to the X case was that we should do nothing.
Ms M. McGennis: That was the stated position of the Fine Gael Members on the committee and that is what the Deputy's party did in Government – nothing. If the referendum proceeds, I want to know Fine Gael's position on the X and C cases, particularly the former, because I want to inform myself before I vote. It is clear from the inaction of Fine Gael and all other parties in the House up to now that the prevailing view was leave it alone and maybe it will not cause us trouble.
Ms M. McGennis: The Fine Gael Members on the All-Party Committee on the Constitution said it was best to leave it alone. I do not believe that is the correct route to take. It is not right that a young woman who has been raped or abused, who has become suicidal and whose pregnancy is near full term should be allowed to have an abortion. Does the Deputy believe this should be allowed to happen? That is what we have been left with in the aftermath of the X case. There is no time limit, there are no defined circumstances, there is a very—
Ms M. McGennis: I apologise, a Cheann Comhairle. At least a position is outlined in the legislation and this will be put before the people. We have stated that it will have the effect of rolling back the X case. I want Deputy Owen to tell me about Fine Gael's alternative before I vote in the referendum.
Deputy McManus correctly pointed out that the floodgates did not open after 1992. There was a fear that, after the Supreme Court judgment, women would rush to the courts and demand their legal right to an abortion in this country. However, that did not happen and, to my knowledge, there has not been one case where a woman demanded that legal right.
Ms M. McGennis: What Deputy McManus did not indicate was the reason no woman has demanded the legal right to a termination or abortion in this country on the basis that she was pregnant and suicidal. That issue was not addressed in any of the consultations in which the all-party committee engaged or in the documents that have been produced.
Even given the legal right of a woman to have an abortion in this country since 1992, why have women decided to travel to Britain? The answer has a great deal to do with the society in which we live and it has not been addressed. Most of the case studies of women in crisis pregnancy refer to the fear experienced by these women. Society has not changed dramatically since the 1920s and 1930s when women went away to have babies and returned home alone.
Ms M. McGennis: One of the practical problems is that there is no place in Ireland where a woman can legally secure an abortion. When the masters of the main maternity hospitals made their presentations to the all-party committee, they informed us that, even if the people decided not to roll back the decision in the X case, they would not provide abortions, as defined in the Bill, in their hospitals.
Ms M. McGennis: No. I understood them to say that procedures described in the legislation as abortions will not be carried out in the main maternity hospitals. In that context, people should be informed about the implications of our choosing a particular route to take on this issue.  In my opinion, we will be facing the prospect of the establishment of abortion clinics in Ireland. I understand, from the presentations that were made, that a woman who is legally entitled to abortion under the regime that has existed since 1992 could do so. Let us inform the people that this is what is involved and if that is acceptable to them they should vote accordingly.
Another reason women travel to Britain is to be found in the book, Women in Crisis Pregnancy. It is stated on page 335 that the journey to England was always difficult and women would be scared that they would be seen. One young woman stated: “You have to tell so many lies because you're coming over. It was tricky. Even going to the airport I was looking around me thinking, everybody knows where I'm going. You know, you're paranoid and everything. It was just how I felt”. Do Members believe that the hundreds of women interviewed for that book would feel less obvious and more comfortable going to an abortion clinic in Ireland?
Ms M. McGennis: These people are still hiding. There is a great deal more that needs to be done in order to protect the women to whom Deputy Olivia Mitchell referred, namely, those who only resort to having an abortion in a crisis. I agree that the description of—
Ms M. McGennis: I am sure everyone in the House knows someone who has been affected by abortion, the majority of whom are still feeling hurt by their experience. Language is important and I urge the Government not to use that kind of terminology in the future.
I support Deputy Olivia Mitchell's request that anyone participating in the debate, inside or outside the House, should take account of the feelings of the women who have had that experience. Everything we say and the way in which we approach this matter can and will cause hurt. The fact that we are discussing the issue of abortion again will cause every woman who has an abortion to undergo some form of trauma and to relive the experience. Whatever  we do, even if it is only Deputy Roche screaming across the Chamber at Deputy Owen, it belittles no-one to agree that insensitive language can hurt women who have experienced abortion.
Ms M. McGennis: I am well aware of that. As a member of the All-Party Committee on the Constitution I had the opportunity to participate in the process of consultation which was very worthwhile. We had had the Green Paper, but it was at our request that the doctors of the main maternity hospitals came in, though I am open to correction on that. We had all the interested groups in and there were 100,000 submissions. The obvious groups came in to make their position known and with one exception they made their case in a balanced, fair and passionate way. I exclude Youth Defence and give full credit to Deputy Brian Lenihan, who chaired the committee, for handling it well. I would nearly urge it to butt out and stay away from this. It certainly did not advance its cause at the hearings and did not do itself any justice. The approach of those from all sides who came in to argue the pro-life and pro-choice cases, whatever one wants to call them, was balanced, reasonable and measured. It was not the frenzy we remember from the previous referendum.
The medical practitioners came in at the request of the committee to make presentations. Up to that point, having supported the first constitutional referendum, I do not know whose wording it was, I just knew that at that point in my life—
Ms M. McGennis: It does not matter. It was something I wanted to support as a young mother. It was in most people's nature to ensure abortion was not available, as a previous speaker said. I supported it, though I did not anticipate, nor did anyone, that it would lead us to the point we reached eventually.
Ms M. McGennis: I would have been one of those who, up to the point when the medical practitioners came into the committee, believed there had to be a simple way to deal with this. It is dishonest and disingenuous for Deputy Dukes to dismiss this as being unnecessary and to say we need simply amend the Act dating back to the 1860s.
 I have had the benefit of three successful births without any problems. One does not realise or understand the kind of difficulties maternity hospitals must deal with on a daily basis and how they protect lives while ensuring mothers and children go home safely. The practitioners concerned pointed out that this was not as simple as people attempted to suggest. I do not want to be confrontational, but it is relevant that they felt they had been left without the legal protection of the House under various Governments in carrying out procedures necessary to save the lives of mothers. We left them stranded. I do not have the transcripts, but that is on the record. They felt there was a possibility they were operating outside the law. Those were the words of one of the masters of the main maternity hospitals. They felt we had left them exposed legally because of the uncertainty as to whether, legally, they were allowed to provide women with necessary medical care.
We are talking emotionally about rolling back and refusing a suicidal woman the right to an abortion, but we also left hundreds of thousands of women at risk because we sat on our hands and did nothing. We said: “The medical profession will deal with that and hopefully it will not end in court” and that is what we all did. We did not move too fast when it was needed.
I know the reason it has been said that this is a rerun of the 1992 referendum, but I disagree. I know people who voted “No” on what was described as the substantive issue, as all Members do. There were two main reasons. One was that those who voted against it, just as is the case today, believed it was wrong to remove the suicide option. Equally – I note my feelings of the time – women believed that that particular amendment decreased the amount of certainty and security they had about their own health. They felt this was going back to a situation where if the lives of both the mother and the child were at risk then the mother was going to die. That was the kind of anecdotal comment made by men and women who voted against the substantive issue in the 1992 referendum.
This legislation clearly states that any medical procedure carried out by a medical practitioner in the course of which or as a result of which unborn human life is ended, where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life – that is clearly stated, which was not the case in 1992—
Ms M. McGennis: What I am trying to say, without being smart, is that women do not have that risk and will not come second: they are not back to a position where the child's life is supreme and where they would have to die in  childbirth, if necessary. It is clearly stated that that is not the position.
Ms M. McGennis: The other issue is that for the first time we have a definition of “abortion”. This was stated in the Green Paper and the various medical practitioners who came to the hearings said it was necessary to define “abortion”. Previous speakers have referred to this in the context of dancing on the head of a pin and whether it was a necessary medical procedure or indirect. We have a definition which clarifies matters considerably.
I do not have enough time to discuss the crisis pregnancy agency, but I am delighted the Minister has established it. Often there is a need to put one's money where one's mouth is and this is the one proposal for which there was total cross-party support at the review group. I commend it as it is very worthwhile.
Ultimately, the people will decide on this issue. At least the Government has a clear position. As has been discovered, it is not acceptable to some Members and it may not be acceptable to the public, but it is a proposition. I hope Fine Gael will adopt a policy on this. Perhaps by the end of Second Stage we will know if it has a position on it as debate is necessary.
Mrs. Barnes: What we need at the end of Second Stage is clarity, assurance and legal accuracy in order that we do not go back to the situation in which we have found ourselves time and again. I do not want to play the old veteran card, but I have a sense of deja vu and of old recordings being played again. I remind Deputy McGennis that the 1983 wording was Fianna Fáil's and it was insisted that that be retained even when medical, legal and legislative Members pointed out that it was filled with danger. The then Attorney General, Peter Sutherland, not only pointed that out, but attempted to introduce a safer wording. That is the history.
To put it into perspective, Dr. Garret FitzGerald, who then led Fine Gael and the Government, publicly asked people to vote against the wording. He realised from the medical and legal expertise he had received that it could place women in danger and that it could also be counterproductive to the pro-life movement which was pushing for it; it could introduce everything it was fighting against, the legalisation of abortion in the country. Lo and behold, nine years later in 1992 it all came to pass. Decent, committed people who wished nothing bad for women were appalled that that was the outcome of a measure they believed was protecting mothers and babies.
That is why we, on this side of the House, are saying please be careful. From what we see as the flaws in the proposed legislation, not only could this happen again but it could do so in a much more proportionate way. This is not a matter of  us sitting on the fence. Anybody who knows the record of most of us in this House knows that is not the case. I pay tribute to Deputy McGennis for her commitment to women on this issue.
|Last Updated: 10/09/2010 19:30:01||Page of 199|