An Bille um an gCúigiú Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: An Tuarascáil. Twenty-Fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Report Stage.
Tuesday, 4 December 2001
Dáil Eireann Debate
I apologise for not being here when I was called. It was not taken in this order the last day. The reason I tabled this amendment is to give me an opportunity to test further the case of the Mini ster in relation to the content of the First Schedule to the Bill about which on Committee Stage I raised some of my concerns. It is set out on page 7 of the Bill and deals with a section beginning with the words “in particular”. Different emphases have been put on these words by different people and the Minister has given the House to understand that they do not have any great importance. It seems that they have greater importance than he suggests because this will be inserted as Article 40.3.4º and preceding it will be the statement that the right to life of the unborn is to be vindicated and defended – not just protected.
This general statement followed by the words “in particular” implies that Article 40.3.4º will be subject to Article 40.3.3º. However, an alternative reading could be that this is not the case at all. Looking at the words, “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”, it can be seen that it is much weaker than what is contained in Article 40.3.3º which states that the right to life of the unborn in the womb, with due regard to the equal right to life of the mother, shall be defended and vindicated. It states, “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.”
The proposed amendment seems to be, as I pointed out on Committee Stage, a reduction in the protection for the unborn. As Article 40.3.3º is drafted, there seems to be a fine balance between the rights of the mother and the rights of the unborn, but whereas much emphasis has been put on the implications of the X case for the mother, we have not put enough emphasis during the debate on the implications of the amendment for the unborn. We need to draw this out and be specific and clear about it. Anybody reading or listening to this debate should know the implications before they cast their vote if the Bill is passed and the question is put to the people.
Deputy Dukes said on Committee Stage that he thought all this could be done with legislation. I disagreed, thinking that this section could contravene Article 40.3.3º and ought to be dealt with by a constitutional amendment in order that any legislation could not be judged to be in contravention of Article 40.3.3º. Since then, however, I have spoken to senior counsel and it seems that Deputy Dukes may have been correct. A case could be made for doing this with ordinary legislation, although I do not know whether it would stand up to a challenge.
The Minister could not do what he wanted to do in the Second Schedule, that is, to define abortion as a crime – after implantation in the womb of the mother – without this reduction in protection for the unborn. I wonder why he did not use the same words as are used in Article 40.3.3º.  Why, in this case, is it a question of the unborn in the womb only being protected, as against being vindicated and defended, as far as practicable, by law? If this was introduced simply as a law, would we be capable of doing this? The Minister has not answered this question to my satisfaction. I ask him to go into it in some detail. Is he reducing protection for the unborn?
The Minister has been talking about the harmonious interpretation of the Constitution, that doctrine which is followed by the High Court and the Supreme Court. If Article 40.3.4º were passed, a future High Court or Supreme Court considering a challenge would take into account all the provisions of the Bill. It seems that, for example, under Article 40.3.3º, notwithstanding the passing of this, it might still be possible for a future Government to bring forward legislation to ban the morning-after pill on the basis that it is an abortifacient, even though the Minister said during his contribution that it was a contraceptive. On the other hand, a future Supreme Court, using this doctrine of harmonious interpretation in a challenge concerning, for example, stem cell research or research on the embryo could interpret Article 40.3.4º as permitting this sort of research which has been giving rise to much concern and to report on which the Minister has quite rightly established an expert group.
We need to be clear on this. I would like the Minister to revisit the words “in particular” and tell us precisely the reason that formula is being used. Those words have been included deliberately and by design. He should also explain to us about the protection of the unborn in the womb. Would this more specific expression of Article 40.3.3º in fact reduce protection for the unborn?
The Bill is entitled the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001. However, the First Schedule deals with the name of the Bill to be put before the House following approval by the people, that is, the Protection of Human Life in Pregnancy Bill, 2002. Since it is and has been clear all along that this will be a 2002 Bill, I do not understand the reason we have been in such a mad rush to get it through the House and the reason the Fine Gael proposal for time to consider it was not agreed. Even taking two or three months we could still have put the question to the people in the spring which I understand is the intention.
The Minister did not answer this question when I raised it on Committee Stage so I will ask it now. It is a simple question. In terms of the criminal offence provisions in this Bill, when does the clock of life begin to run? I believe human life begins at conception. I have no difficulty in saying that. As one of my colleagues said to me recently, even an atheist scientist would probably confirm that. It is nothing to do with religious belief although most Members would be influenced by that. The criminal offence of abortion being provided for in 1(1) of the Schedule is not the same as that which exists in the Offences Against the  Person Act, 1861, which talks about procuring a miscarriage. I ask the Minister to address the question of this case and tell us when the clock of life begins. When does the offence start? Implantation is not defined in the definition section of the Bill so when is it an offence and what evidence would be required to show implantation had taken place?
This Schedule gives rise to pro-life concerns but I do not wish to go over the top about them. My job as counsel for the prosecution, so to speak, is to test the weaknesses in the Bill. I note that many of the contributions have centred on the X case and in particular on the concerns of the mother and that is quite right. I am equally concerned. Article 40.3.3º does hone the balance there but it would be wrong to proceed with this debate and to look at all the arguments for and against this amendment without equally testing the Minister's case for the effect this legislation and amendment would have on the rights of the unborn. We are entitled to know this clearly.
I would prefer that the Minister spell this out and that it not be left to some referendum commission to put the case for and against, as thought up by lawyers. The Minister has put the Bill together with the advice of a number of people so he is in a good position to advise the House on these matters. It is something we will require detailed answers for if the Bill is passed and put to the people. It is in everybody's interest that the Minister clearly indicate in reply to my questions his response to the issues I have raised.
On Committee Stage the Minister said he would come back to me on the latter part of the First Schedule where it deals with the law containing only the provisions set out in the Second Schedule's Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Act, 2001. If it is carried “this section, other than the amendment of Article 40 of this Constitution effected thereby, shall be omitted from every official text of this Constitution published thereafter”. As a matter of interest and technicality, will the Minister confirm that a full text of the Constitution with all amendments is available to Members and the public? Is a copy kept in the Attorney General's office or the Chief Parliamentary Counsel's office? The Minister should explain that to us so that we are informed. Whereas the wording that will be passed will be seen by us now it will not appear in future drafts of the Constitution. I understand why it would not because with all the amendments made through the years the Constitution would be unreadable but is there a kind of master version of the Constitution, with all the amendments intact, kept some place?
Ms McManus: We should be grateful to Deputy Mitchell for putting forward this amendment because it is a matter of concern which Deputies felt was not fully addressed when raised on Committee Stage. The relationship between Article  40.3.3º and the proposed Article 40.3.4º is an issue at the heart of which is the fact that there is possible conflict between the two. It is ambiguous because we have an article of the Constitution being retained and a new section being proposed which is different in certain respects even though it relates to the same issue – the right to life of the unborn. That difference between the two could give rise to litigation and difficulties of interpretation if this proposal is incorporated in the Constitution.
If anything, the wording in the Bill highlights and is a signpost to this difficulty because the Minister himself refers to it by starting Article 40.3.4º with the words “in particular”. It says “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.” Those words “in particular” are defining that this section of the Constitution, if it is added to the Constitution by the people, is different to Article 40.3.3º in some way. It seems obvious that is correct particularly if that wording is included. If the words were “notwithstanding the existing Article” it would be more logical and comprehensible.
I can understand why the Government does not propose to remove Article 40.3.3º as there would be political difficulties with that. It would open quite a can of worms in terms of controversy. We have an article in the Constitution which states clearly the right to life of the unborn and of the mother and that has been interpreted by the Supreme Court to include where there is a risk to suicide. What the Minister is now proposing is the addition of Article 40.3.4º which says something else. It says “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.”
Let us take the issue of the unborn first. It was dealt with by Deputy Mitchell but it is worth repeating. There is no definition in Article 40.3.3º that says it is only the unborn in the womb that is protected. When we look at the actual provisions of the Bill itself we see a further restriction on the definition because it refers to abortion as meaning “the intentional destruction by any means of unborn human life after implantation”. So we have a series of qualifications being presented. At the same time, the original article, which has been interpreted by the Supreme Court, stands.
When we look at the issue in relation to the right to life of the mother it is clear in Article 40.3.3º, which is already part of the Constitution, 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.” Mothers have a protection and right to life at the moment and that has been interpreted to include where there is a risk of suicide on which the Supreme Court was asked to make a judgment because of the  tragic X case, where a young girl was suicidal and prevented from having an abortion. The Supreme Court made it clear that its interpretation included a risk of suicide. Mr. Justice O'Flaherty stated clearly that, in his view, the law protected women and that that was the current position on the risk of suicide.
This proposal deliberately removes that protection. There is no ambiguity in the Bill. Those who drafted it are not hiding what they do, but state in the Second Schedule that abortion does not include 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, 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 other than by self-destruction. The words “other than by self-destruction” form the kernel of the Bill and require a referendum. This indicates to me – I am reasonably intelligent, although I have no legal training – that there is a conflict between what is being proposed in Article 40.3.4º and what is already provided for in the Constitution in Article 40.3.3º.
The words “in particular” at the start of Article 40.3.4º are particularly difficult to interpret. Do they mean that the unborn can continue to have protection beyond that offered in the Act, or do they limit the protection of the unborn to that offered in the Act? These words imply that Article 40.3.4º may be incompatible with the existing Article 40.3.3º. In relation to Article 40.3.4º, it may also be incompatible with Article 40.3.3º for the reason that it makes no reference to the equal right to life of the mother, nor is any reference made in the Protection of Human Life in Pregnancy Act, 2002, to the right to life of the mother. Yet Article 40.3.3º clearly provides that the State must have due regard to the mother's life. Limiting the right to life of the mother by ruling out suicide as a ground on which her right to life may take priority over that of the unborn appears fundamentally incompatible with the protection for her right to life under Article 40.3.3º. It is thus very likely that, even if passed, Article 40.3.4º will give rise to significant litigation issues as it is difficult to see how this inconsistency between Article 40.3.3º and Article 40.3.4º can be overcome given the wording of the Protection of Human Life in Pregnancy Act, 2002.
In 1992 Deputy O'Malley said it was unnecessary to remove from the Constitution the risk of suicide as being a risk to a woman's life when the then Taoiseach, Deputy Reynolds, proposed it. He gave the example of an anorexic girl who was brutally raped and pregnant but could not travel and was suicidal as a result of her experience. He stated even though it was exceptional, unusual and rare, such a case could arise. Everyone  thought the X case was extraordinary, and when in 1983 many of us argued against putting this matter in the Constitution, those on the other side of the argument argued that such exceptional cases would not arise. We know now that not only was there the X case, but the C case also.
If the case of the anorexic girl, described by Deputy O'Malley, was argued in court as her having protection for her own right to life under Article 40.3.3º, which will still be in the Constitution after this referendum, would her right to life be protected as it must be under that article, or would it be denied under Article 40.3.4º? We must foresee this. There is a certain validity in the Government's stating the courts have been left to interpret these matters, but this is hard to accept when there is this essential ambiguity to be decided upon by them. The Minister may say that these two sections will be read in harmony. We all want harmony, and would all like to see harmony on this issue, but that would be too ambitious. We cannot simply answer this question by saying that the two must be read in harmony because they are not in harmony. That is the difficulty.
There may be a new argument presented which was not made on Committee Stage, but one cannot read something which is contradictory in a way that will undo this. Words on a page are words on a page. One cannot make them into something else by any drafting sleight of hand. A lack of logic will remain no matter how they are read. This is not a sufficient answer to explain how one part of the Constitution would provide for the right to life of the unborn while another would provide for the qualified right to life of the unborn, so long as it is in the womb after plantation. Article 40.3.3º would provide for the right to life of the mother, but there would be no such right in Article 40.3.4º because it would exclude the risk of suicide. The people were asked this question in 1992 and did not remove the risk of suicide in respect of the right to life. If the question is put to them again, I suspect because of how society has moved on, the answer is even less likely to be to remove a woman's right to life.
Minister for Health and Children (Mr. Martin): This issue was debated at considerable length on Committee Stage when I gave clear answers. A clear statement was given on the use of the words “in particular” and other issues to which Deputies Gay Mitchell and McManus referred.
Mr. Martin: The difficulty is that the Deputies did not accept the answers or the arguments. There is a difference between getting answers and agreeing with them. In a democracy people are entitled to different perspectives.
I restate that the term “in particular” when used in the proposed Article 40.3.4º makes it clear that the statute envisaged by the amend ment is not intended to be a restatement of the term “unborn” as used in Article 40.3.3º. As I explained on Committee Stage, when it comes to the interpretation of the Constitution, the Supreme Court must follow the well established principle of harmonious interpretation. In other words, constitutional provisions should not be construed in isolation from all other parts of the Constitution, among which they are embedded, but should be so construed as to harmonise with other parts of the Constitution. Therefore, neither of these articles can be regarded as taking precedence over the other; they must be construed together. Deputy McManus has tabled amendment No. 4 and Deputy Mitchell amendment No. 5 on this issue.
Deputy Mitchell drew attention to the use of language in Article 40.3.4º as opposed to the language used in Article 40.3.3º. I strongly reject the questions raised by him that the use of the word “protect” in any way weakens the protection of the unborn. It does not. We did not set out in this proposal to define when human life begins. We are defining the act or crime of abortion. We are providing a modern statute in terms of the crime of abortion. We are referring to the intentional destruction of the baby after implantation in the womb. We made this very clear on Committee Stage. We went through all the details and defined implantation in terms of the process involved. It was teased out in some detail.
Deputy Mitchell made an erroneous deduction as to the reason the word “protect” was inserted and we did not use the word “defend”, which is already included in Article 40.3.3º. As Articles 40.3.3º and 40.3.4º will be read together, there is no necessity to insert those words into Article 40.3.4.º However, the deduction he made that we would be restrained in what we could do in the legislation unless we used this particular form of language in the article itself is not correct. That was certainly not the purpose of the subsequent language used in the legislation. The Bill does not reduce the protection of the unborn.
I take Deputy Mitchell's point made on Committee Stage that not much emphasis was placed on the dimension of the unborn in the debate. I said that myself towards the end of Committee Stage, but that is a function of those who contributed to the debate. Deputy John Bruton came in at one stage and raised it.
Mr. Martin: Deputy Mitchell raised issues across the full spectrum from a whole range of perspectives. I was somewhat surprised by his suggestion that somehow we were almost conspiratorially drafting this with a view to facilitating embryonic research.
Mr. Martin: I accept that, but I took that view. Other organisations are trying to make that assertion, but it is totally untrue. Several months ago we established a commission on assisted human reproduction to look into all the aspects of what is a rapidly developing area, particularly in relation to embryo research, and to consider the ethics involved, etc. We drew together people with particular expertise in the field. It is a very complex area, which is not covered by the Bill.
Mr. Martin: I cannot predict precisely what the Supreme Court may do. It is impossible for anyone in the House to say they have a fair idea what a particular body of people who happen to sit on the Supreme Court will do.
Mr. Martin: That is what the Deputy seems to be suggesting. Once there is a written constitution that is amended, at a later stage it is subject to interpretation. That is a fact of life and the nature of having a written constitution.
Deputy Mitchell also raised a question about the form of the Constitution after the referendum. He asked whether there would be any form of the Constitution, in which all the amendments proposed in the Bill will continue to appear even after the passage of the Protection of Human Life in Pregnancy Bill. There is provision in the Constitution for this. The text of the Bill, when enacted, will be enrolled in the Supreme Court in accordance with Article 25.4.5º of the Constitution which states:
As soon as may be after the signature and promulgation of a Bill as a law, the text of such law which was signed by the President or, where the President has signed the text of such law in each of the official languages, both the signed texts shall be enrolled for record in the office of the Registrar of the Supreme Court, and the text, or both the texts, so enrolled shall be conclusive evidence of the provisions of such law.
It shall be lawful for the Taoiseach, from time to time as occasion appears to him to require, to cause to be prepared under his supervision a text (in both the official languages) of this Constitution as then in force  embodying all amendments theretofore made therein.
A copy of every text so prepared, when authenticated by the signatures of the Taoiseach and the Chief Justice, shall be signed by the President and shall be enrolled for record in the office of the Registrar of the Supreme Court.
The copy so signed and enrolled which is for the time being the latest text so prepared shall, upon such enrolment, be conclusive evidence of this Constitution as at the date of such enrolment and shall for that purpose supersede all texts of this Constitution of which copies were previously so enrolled.
Mr. G. Mitchell: I do not know if I can do this in two minutes, but I understand I can come back in any event. Articles 40 to 44, which will be amended yet again if these proposals go through, deal with personal rights under the overall heading “Fundamental Rights.” Article 41 states: “All citizens shall, as human persons, be held equal before the law.” It goes on to state: “This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
Interestingly enough, the Bill defines a woman as a “female person.” I presume a man means a “male person.” Since all citizens as human persons shall be held equal before the law and we have a definition for a woman and de facto for a man, why do we not have a definition for the unborn? There is no definition in Article 40.3.3º. There is no mention of conception. There is no definition for implantation. There certainly is no definition for the unborn.
Under these fundamental rights, where we speak about human persons, I presume the Minister would agree that the Constitution, in Article 40.3.3º in particular, sees the unborn as a human person, which has certain rights. If that is the case, why is there no definition in the Bill for the unborn? There is a definition for a woman to which I will come back.
The Minister claims he has answered all the questions. This is the fourth time I have asked him when the clock of life starts in relation to the offence of abortion and he has not answered me directly. I can understand he may have difficulty in doing so, but the wording as proposed does change the definition of the crime of abortion from that contained in the 1861 Act, which is to procure a miscarriage. The Minister should tell us more clearly his thinking in changing that definition.
Ms McManus: I revert to the individual case to which I was referring in order to get clarity. I would not ask the Minister to take on the role of  the Supreme Court. If a child went to court, could that person argue under Article 40.3.3º that they had a right to life, including a right to life where there is a risk of suicide since that is included in the Constitution, or would that person be prevented from doing so on the basis that Article 40.3.4º states something different? Is it the case that one does not lose the right already enshrined in Article 40.3.3º since it is established and interpreted by the Supreme Court, although a subsection of another article in the Constitution states something else?
Mr. J. O'Keeffe: We are getting to the core of the issue which confronts us. We are talking about the definition and the need to be utterly transparent with the people. We are proposing to put before the people a proposal to change the Constitution. It is essential that the people fully understand the import and the impact of that change.
I sat through the all-party committee hearings for approximately six weeks and it was instructive to hear the different views. It taught me about the enormous complexity of the issue with which we were dealing. There is an old saying that where there is a complex problem, one can provide a simple solution. However, that does not work. If there is a complex problem, one must be clear that there is not a simple answer to it. If an issue is put before the people, they are in a position of being judge and jury. If a case is before the courts and a jury, it is important that there is a full explanation of the issues to allow the jury to come to a decision in the full knowledge of all those issues.
I am concerned about the present proposal because the people do not understand what the Minister is trying to do. The people are not engaged in the debate and they do not fully understand the proposal. That is the worst possible way to present it to the people for their decision. There are many reasons they do not fully understand it. Part of the reason for the lack of engagement is that they do not fully understand the issue. I do not decry the Minister's efforts, but they have not worked. Part of the problem is the lack of a definition, as Deputy Gay Mitchell said. There are different definitions for the same issue, even for the term “abortion”. We found out during the committee hearings that the word abortion was defined differently from the medical point of view – different medics had different definitions – and from the legal point of view. There was not a legal definition of abortion, although people relied on the 1861 Act in the past. The committee heard theological evidence, but again there were different views.
The difficulty now is that there is further confusion about abortion because of the different treatment of the unborn, which is also undefined, from conception to implantation and thereafter. It is difficult, if not impossible, for many people who were brought up believing that the moment of life began at conception to accept that there  should be a difference in the treatment of this issue before and after implantation. My understanding, although I am not a medical expert, is that there is a period of 14 days on average between conception and implantation. I think I understand what the Minister is trying to do, but the public does not. Many people will not accept that there should be a distinction or the Minister's reason for that distinction. That is one of the principal issues which will cause the Minister difficulty in having this proposal accepted by the people.
At the other end of the spectrum there is the difficulty in terms of the threat of self-destruction. That issue has not been fully clarified for the people. I accept that before the committee hearings the evidence we had was that pregnancy reduced the possibility of suicide. On the other hand, the evidence before the committee was that it was rare even when a therapeutic intervention was carried out for physical reasons. The evidence from the masters of the three maternity hospitals was that it only occurred a few times a year. Those who said that suicide was not a factor did not exclude it from happening in certain rare occasions. One cannot say it is impossible for the threat of suicide to arise. That gives rise to the question at the other end of the spectrum as to the propriety or otherwise of total exclusion.
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