An Bille Um an Ochtú Leasú ar an mBunreacht, 1982: An Dara Céim. Eighth Amendment of the Constitution Bill, 1982: Second Stage.

Wednesday, 4 May 1983

Seanad Eireann Debate
Vol. 100 No. 5

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[509] Tairgeadh an cheist: “Go léifear an Bille an Dara hUair anois.”

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

Minister for Justice (Mr. Noonan,: Information on Michael Noonan  Zoom on Michael Noonan  Limerick East): Senators will already be fully aware of the background to this measure and I do not think it necessary to go over it again. However, I think I should emphasise, and place on the record of this House, that my party at no time sought to avoid their commitment to a constitutional amendment to protect the life of the unborn. We were the first to give the commitment. When the present wording was published we accepted it in good faith as complying with the commitment. In office we restored this Bill to the Dáil Order Paper at the earliest opportunity.

When close examination of the text revealed defects, an alternative text was approved by a majority of our Parliamentary Party and put forward but it did not secure acceptance in the Dáil. The Dáil has made its decision and it is now a matter for this House to consider its attitude.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  Tairgim leasú a 1:

Go scriosfar na focail go léir i ndiaidh “Go” agus go gcuirfear an méid seo a leanas ina n-ionad:—

“ndiúltaíonn Seanad Éireann an dara léamh a thabhairt don Bhille um an Ochtú Leasú ar an mBunreacht, 1982 ar an bhforas go bhfuil sé chomh doiléir agus chomh débhríoch sin nach é an t-ábhar ceart é do thogra a bheidh le cur os comhair an phobail i reifreann.”

I move amendment No. 1:

To delete all words after “That” and substitute the following:—

[510]“Seanad Éireann declines to give a second reading to the Eighth Amendment of the Constitution Bill, 1982 on the grounds that the Bill is so unclear and ambiguous that it is not the proper subject for a proposal to be submitted to the people in a referendum.”

The Labour Party are unanimous in asking the Seanad to refuse to give a Second Reading to this Bill on the grounds that it is so unclear and ambiguous as not to be a proper subject for a proposal to be submitted to the people in a referendum. I have the honour, therefore, to move this amendment on behalf of the entire Labour group.

I shall explain more fully in the course of my contribution the serious legal, medical, religious and social problems which arise from the wording of this amendment but first it is necessary and important to be clear on the exact process envisaged in the Constitution for any amendment to it and in particular the role of the Seanad in this constitutional process. I say this because I believe — and I feel a number of other people believe — that the Seanad itself is on trial today. It will be judged by how it approaches this debate and indeed the way it handles this motion seeking to have the Seanad decline to give the Bill a Second Reading. It is fair to say that the eyes of the public are on the Seanad at the moment. However, from what has been said in advance of this debate not much is thought of the Seanad. We are not in fact regarded as a very serious or significant body in relation to our contribution on this constitutional amendment.

When this Bill had completed its stormy passage through the other House I personally overheard one political commentator, Chris Glennon, speaking on a radio programme, stating flatly that he never understood why the Seanad had been kept on and that it should deal with this Bill as rapidly as possible and then “let the people decide”. In similar vein the Leader of Fianna Fáil. Deputy Haughey, urged on radio, and in his comments to newsmen, that the matter should go through this House as quickly as possible so that the people could make [511] up their own minds on it. The most tortuous and difficult contribution in this area is that of the Taoiseach. His attitude is all the more difficult to understand because he has described this Bill as dangerous and unacceptable. But he has apparently encouraged the Fine Gael Senators in this House to remain in their seats and to abstain from any vote. It would appear — unless I am mistaken — that they intend to abstain on this motion which I am proposing. Having allowed that to happen, the Taoiseach then apparently intends to issue a statement urging the voters not to vote for this amendment. It is very difficult to understand the mental processes that are behind the intentions of the Taoiseach, but I have no doubt that he has some able advocates in this House to explain why this very unusual stance has been adopted.

In any case, I have news for Chris Glennon, for Charles Haughey and for the Taoiseach and in particular — and I say this in friendship — for the Fine Gael Senators, especially those who are sitting and listening to me at the moment. The thrust of what I am going to say is to show that the Seanad has an important constitutional role to play in this area. If we abdicate that role then the only other approach is to table a motion at the next sitting of the Seanad calling for our own abolition, calling for the abolition of this House. There is no doubt that the taxpayers cannot afford to continue to fund and support the salaries and pensions of Members of this House if we abdicate our responsibility in such an important provision as a proposal to amend the Constitution. We are very much on trial in this debate. What we do should be looked at in the context of whether the Seanad has any useful role to play and if so what role.

The role of the Seanad in the area of a constitutional amendment is a particularly important one. Because it is essential to the motion which I am proposing I intend to explain clearly if I can— particularly in reference to the earlier remarks of Senator Lanigan about lawyers making everything very technical [512]— what precisely is the role of the Seanad, the role from which it cannot abdicate, cannot cop out from, cannot sit and refuse to participate in. This role relates to the nature of a constitutional amendment and here I have to turn to the much maligned document itself, the Constitution. Article 46 provides that the Constitution may be amended in three possible ways, by variation, by addition or by repeal and that it must be done in the manner provided for in that Article. This is clearly intended to be an addition. It is to add a subsection to Article 40.3. Therefore, the proposal is for an addition to the Constitution. Article 47 provides for the participation by the people. It is worth looking at Article 47.1 which states as follows:

Every proposal for an amendment to this Constitution which is submitted by Referendum to the decision of the people shall, for the purpose of Article 46 of this Constitution, be held to have been approved by the people, if, upon having been so submitted, a majority of the votes cast at such a Referendum shall have been cast in favour of its enactment into law.

Prior to its going, by way of referendum, for approval of the people, it must go through a parliamentary process. That parliamentary process is described in Article 46.2. It says:

Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

So the procedure envisaged in the Constitution is the introduction of the Bill in the Dáil and only in the Dáil, its passage, or being deemed to have been passed through both Houses, and then submission to the people for approval. I will come back to the importance of that word “approval” because it is very relevant to the debate we are to have in this House [513] and in particular to the motion which the Labour group put down, that this House must and should reject a Second Reading of the Bill.

The role of the people that is envisaged by the Constitution is to approve or not to approve a proposal. This is the way it will be put to them in the next Bill on our Order Paper, the Referendum (Amendment) Bill, 1983, which we would pass if the Bill now before us is passed. The form of that is that the ballot paper itself will contain the text of the wording. It will contain the proposed wording that is to be added and it will have the following as the way in which the people participate: “If you approve of the proposal, mark X opposite the word ‘yes’ on the ballot paper; if you do not approve of the proposal mark X opposite the word ‘no’ on the ballot paper.” The obvious implication of this is that the ordinary voter, the man-in-the-street whom Senator Lanigan was speaking for a short time ago, is to be asked to look at the text on the ballot paper and to put an X if he approves of it in one place and an X in another place if he does not approve of it. The importance of that is that all the people can do and all they are required to do is to indicate approval or otherwise of a particular form of wording. But in order that the voter can do that, he must understand, and is entitled to understand, what the wording means. He is entitled to understand clearly what he is supposed to be approving or not approving of.

The ordinary man and woman, the ordinary person 18 years and older, should be able to understand the implications of the proposed wording and should be able to say, “I do approve”, or “I do not approve”. There is an onus on us that we cannot pass on to anyone else. We have responsibility to ensure that the proposal that goes through this House is capable of being understood in that context, that it is capable of being understood by the people of Ringsend, of Kerry and of Mayo — the ordinary people of this country — in the context of “do you approve?” or “do you not approve?” If it is not capable of being understood as meaning something in that sense then it [514] is not a proper proposal and we should not allow it to be put forward as a proposal. It is wrong to say let the people decide. The people do have a role to play. They approve or they do not approve but before they do they must have a proposal on which they can in fact make an informed and intelligent decision.

The framing of that proposal is the responsibility of the Dáil and of the Seanad. I would accept, partly because of the reference in the Constitution to the fact that the Bill must be initiated in the Dáil that the primary role in framing it is the role of the Dáil. It is for the Dáil to come forward with a proposal to amend the Constitution. But this House cannot get away from its responsibility which is to see whether that proposal satisfies a necessary test — if you like, in lawyers' language, of legal certainty — that it has a fixed, clear meaning that the ordinary punter can say, “I agree with that”, or “I do not agree with that”. That I would submit is the main thrust of why this motion should be carried not just by Senators on this side of the House but by Senators on both sides. In fact it should be carried unanimously if Senators are prepared to look at the wording and listen to the very serious problems which arise from that wording and which I will be dealing with.

The duty, then, on each of us in this House is to ask ourselves if this proposal is a fair and reasonable proposal to submit by way of referendum to the people. Before I come to examine the wording and show some of the real difficulties involved in it we have to be sure that it is a proposal that the people can understand. The next question is, if this Bill is passed who is going to explain it in the course of the referendum campaign? That, too, is fascinating if one looks at the present situation because Deputy Haughey says that Fianna Fáil will not campaign for it as a party. The Taoiseach said that he will make a statement urging the people to reject it but that Fine Gael will not campaign against it. Although a number of Labour Senators and Deputies will undoubtedly campaign vigorously against it, once again the Labour Party decided to have a free vote on this and [515] not to campaign as a party against it. None of the political parties is to campaign in the way of explaining or of advocating the amendment or to campaign against it.

Who is to explain to the people what this very complex wording means? I hope that by the end of this debate one thing we will be clear about is that it is very complex and very difficult wording. It looks at the moment as though the explanatory role will be taken over not by the ordinary political forces in this country but by the small minority self-styled pro-life groups who have been very instrumental in pushing this amendment from the beginning and, it would appear, senior Bishops and other members of the Catholic Church. We are going to have a pro-life group and one denomination campaigning for this change in the Constitution. Is that not nice in a country which proclaims itself to be committed, and indeed in which its existing Constitution is committed, to a pluralist society?

Is that where we have brought ourselves in this very sad and very regrettable debate? Not only is there the duty that flows from the stricture in the Constitution itself, the duty and responsibility on every Member of this House to be satisfied that the proposal is as clear and straightforward in its meaning as it must be if the people are to be asked in fairness to approve it or not, but we also have the additional problem that the explaining would be done by very sectional and, on this issue, partisan parts of our community. Therefore the people would be potentially open to distortion of the wording, to being told, not on any great political or legal authority, but simply by lobbies who wished to read into the words what they wished to read into them, what the words mean. That is an extremely serious issue. It is for that reason that I have to focus again on the role of the largest group in this House. If Fine Gael Senators, as the largest group, abstain on this issue and refuse to accept this clear responsibility on each individual member of the group to examine the wording and to be satisfied that it is a clear proposal [516] fit to be put to the people in a referendum, then I would submit that we have sounded the death knell of this House and moreover that those Senators who sit here and do not discharge that responsibility have negated their own mandate, that those Senators who travel from one end of the country to the other to get their mandate will have negated it, diminished it and failed to rise to their responsibility in the matter.

Furthermore, I would say to those Fine Gael Senators who have raised this particular aspect of it — that it would lead to a constitutional crisis — that that is not the case. It would not lead to a constitutional crisis and it is not unprecedented. There has been already an example of a case when the Seanad rejected a Bill passed by the Dáil to amend the Constitution. It happened in this House on 19 March 1959. The Seanad on that occasion by 29 votes to 28, by a majority of one — Senator Mark Killilea is nodding so he obviously recalls it — rejected the Bill to abolish proportional representation and that brought into play the procedure under Article 23 of the Constitution. The matter went back to the Dáil and when the necessary time had elapsed the Dáil passed a resolution on 13 May 1959 deeming the Bill to be passed. It was then submitted by way of referendum to the people and the people said “no”. I think the people said no, at least in part because they were influenced by the fact that the Seanad had rejected it. They were influenced by the concern expressed in that debate in the Seanad, the concern about the protection of minorities, about the dangers of abolishing a fair and proportional system that had had time and opportunity to show its virtues and perhaps some of the problems relating to it. but mainly its virtues. The concern and the fact that the Seanad rejected that proposal to amend the Constitution had. I have no doubt at all, a healthy, salutary and proper influence on the ultimate debate in the country. Therefore, if there are as many problems with this wording as I intend to outline to the House and if the senior and responsible people from the Taoiseach down say that it is dangerous and unworkable and unacceptable. [517] surely this House has a major responsibility to look at it and see whether it constitutes a proper proposal and we cannot just cop out on that responsibility.

I turn now to consider the very serious problems which I submit are posed by the present wording of the Bill. I intend to look in turn — although there will obviously be some overlap — at the legal, medical, religious and social problems it raises. It is necessary to make the overriding point that because the wording is so ambiguous and unclear it is capable of being interpreted in entirely opposite senses. This, in fact, is bringing disrepute on the profession to which I belong. It is bringing disrepute on lawyers. There is a tendency to say that lawyers will say anything but in fact the essence of legal training is to have knowledge of how words are interpreted. There are books written on statutory interpretation and part of the role of lawyers is to estimate what the wording would be. It is very important for politicians to note the conflicting interpretations because that in fact means that it is fundamentally ambiguous. It does not mean that lawyers on one side or the other are liars or that they are being self-seeking or devious: it means that they have genuine, serious differences on the interpretation of the wording.

The problem, therefore, is that the various words and phrases in the amendment can have completely opposite meanings. If this Bill is passed and put to the people for their approval they will not know which meaning should prevail. There is no way that the ordinary voter can have authoritative guidance between the time this Bill is passed through this House and when the date is set for a referendum. Nobody can give them that guidance. There is no possibility of sending it to the Supreme Court under Article 26 of the Constitution for an interpretation because a Bill to amend the Constitution is excluded from that. There is no provision in the Constitution by which the court could intervene and interpret. This is very important because the only authoritative interpretation of an Act of the Oireachtas is the High Court and, on appeal, the Supreme Court.

[518] Therefore, even if there are different views expressed, as of course there will be in this House, I am going to be the first to say that I do not know definitely what the wording means. There is no way I can know. I can see the difficulties and I can raise the problems but I cannot say it definitely means this or it definitely means that or it would definitely be interpreted to mean this or that. If I do not know it, how is the voter to know it? How is the man or woman, the 18 or 19 year old, to know how the wording is going to be interpreted? It is not possible to get authoritative interpretation except in future litigation. That future litigation would not come until after this Bill has been passed, if it is to be passed, in a referendum. I would like to say on that point that even if this Bill goes through both Houses and is submitted for a referendum my own personal judgment on the matter is that it is by no means certain that it will be accepted by the people. Indeed, there are very good reasons to indicate that it will be rejected by the people. The Seanad would help that along if it applied itself to the responsible task of looking at the Bill, rejecting it and letting it then, if necessary, go by a resolution of the Dáil to the people ultimately to be rejected like the proportional representation amendment was rejected.

Since I am raising a very serious objection which I do not think has been particularly raised and identified in the other House, there is a duty on me to show why this was not a problem in relation to the other proposals to amend the Constitution. It is a particular problem with this proposal to amend the Constitution. The same fears and worries about the wording did not arise in the other cases. That is very largely because of the nature of this amendment, its very general wording in a very complex and difficult legal, medical and social area. If we look at the previous seven amendments we will see that these problems simply did not apply at the earlier stages.

The first two amendments were brought in during the three years after 1937 under the transitional provisions in Article 51 so there was no referendum. [519] The arguments do not apply to them. The third amendment to the Constitution was when we joined the EEC. That was a clear issue as far as the voter was concerned. It may well be, and indeed in retrospect it is true to say, that none of us could have envisaged all the political ramifications and all the consequences of it, but the issue was a clear one. It was a proper one for the people of this country, as people of other countries had done, to vote on. The fourth amendment to the Constitution reduced the voting age from 21 to 18. Again that was a clear measure and one on which it was appropriate and proper for the people to vote. The fifth amendment abolished the reference in the Constitution to the special position of the Catholic Church and there was also a reference to other named Churches. That again was a specific, concrete proposal and it was carried by a majority of the people voting. The sixth amendment was quite a technical amendment but could be explained and was explained as securing the legal basis of the Adoption Board. Once the people understood what it was for — although the wording of it was quite technical and difficult — there was no problem because the concept was clear and it was explained clearly by the Government of the day. There was no controversy or opposition to it and it, too, was carried.

The seventh amendment was in effect an enabling amendment allowing for a possible future change to be made in the distribution of the University seats in this House. That is still a matter for the future. Nothing has been done on foot of it but again it was a specific proposal that was clear and could be understood.

This situation has to be contrasted totally with the present proposal. On the contrary, it is so unclear and so ambiguous that it has been criticised severely and in an unprecedented way by the two chief law officers of the State, the Attorney General and the Director of Public Prosecutions. The focus of their concern — and I accept that their concern was a concern very much in good faith — is on the ambiguity and lack of clarity of the wording. I propose first to refer to the [520] relevant part of the statement published by the Attorney General, Mr. Peter Sutherland, on the issue. I am quoting from The Irish Times of 16 February 1983 where the Attorney General made public the advice he had given the Government because he was obviously concerned about the wording that is now before us and he made quite a long statement explaining what the basis of his concern was and he begins that statement as follows:

In summary: the wording is ambiguous and unsatisfactory. It will lead inevitably to confusion and uncertainty, not merely amongst the medical profession, to whom it has of course particular relevance, but also amongst lawyers and more specifically the judges who will have to interpret it.

Far from providing the protection and certainty which is sought by many of those who have advocated its adoption, it will have a contrary effect.

In particular it is not clear as to what life is being protected; as to whether “the unborn” is protected from the moment of fertilisation or alternatively is left unprotected until an independently viable human being exists at 25 to 28 weeks.

Further, having regard to the equal rights of the unborn and the mother, a doctor faced with the dilemma of saving the life of the mother, knowing that to do so will terminate the life of “the unborn” will be compelled by the wording to conclude that he can do nothing. Whatever his intentions he will have to show equal regard for both lives, and his predominant intent will not be a factor.

In those circumstances I cannot approve of the wording proposed.

That is the considered view of the highest law officer in the State. He cannot approve these words because they are so fundamentally ambiguous and will give rise to very serious problems in that ambiguity.

The other law officer, the Director of Public Prosecutions, who is an independent officer established under statute and who has been in his position since the [521] office of the DPP came into being by statute in 1974, also expressed concern about the wording and was quoted as having done so. He then faced an onslaught of criticism. The criticism of the DPP reminds me of the civilisations that used to kill the bearer of bad news — kill the messenger and somehow the bad news will go away. That is what is being attempted in relation to the DPP — kill him off, undermine his credibility and maybe nobody will bother about the fact that he has very serious reservations about this proposal. It would, in his view, make any prosecution under the existing criminal law more difficult and potentially not workable. In view of the fact that Mr. Barnes is distressed at having been misquoted and criticised for what he did not say, I propose to refer to the statement which he issued yesterday. Today's edition of The Irish Times contains the full text of the statement and states as follows:

The Director of Public Prosecutions wishes to refer to criticisms of him made in the course of an interview in the mid-day news programme on RTE on Sunday, May 1st. As that was the second occasion on which a Member of Dáil Éireann had suggested that the Director had improperly entered the political arena and had implied that he had acted in a manner which was inconsistent with the nature and constitution of his office, it has regrettably become necessary for him to state the relevant facts. He does so without comment.

1. The Director has at no time made any public statement regarding any proposal to amend the Constitution.

2. The Director has a statutory obligation under section 2 (6) of the Prosecution of Offences Act 1974 to consult with the Attorney General in relation to matters pertaining to the Director's functions.

3. He has so consulted on a substantial number of occasions with successive Attorneys General.

4. The enforcement of section 58 of [522] the Offences Against the Person Act, 1861 is a function of the Director.

5. The Director had a consultation pursuant to section 2 (6) of the 1974 Act with the Attorney General on February 16th, 1983, concerning the extent, if any, to which the performance of that function would be affected if the Constitution were to be amended in accordance with a formulation which had then been proposed. That proposal was the only one which had been made up to that date.

6. At the consultation, the Director expressed certain views to the Attorney General regarding the effect that such an amendment could have, in practice, on the enforcement of section 58 of the 1861 Act.

7. The Attorney General considered that those views might be regarded by the Government as a matter of importance for the public, and inquired of the Director if he would have any objection to their being made known to the public in the event of its being decided so to do. The Director expressed the opinion that there could be no valid objection by him to his views being made known to the public, but he made it clear that he would not himself be making any public statement about the matter. As far as the Director is aware, the statement subsequently issued by the Government Information Services did not purport to be a statement issued by the Director.

8. Contrary to what has been widely reported, the views expressed by the Director were not concerned with the same issues as had earlier been raised by the Attorney General. They were concerned with a quite different aspect of the matter, being strictly confined to the question of the enforcement of section 58 of the 1861 Act.

9. Criticism has been made both of the Director's views and of the fact that they were expressed at all. Regarding the former criticism, the statement issued by the Government Information [523] Services correctly indicated that the Director envisaged certain difficulties in the enforcement of section 58 of the 1861 Act if the Constitution were to be amended as proposed, but it did not specify what those difficulties were nor did it indicate the reasons for them. Regarding the latter criticism, the Director believed that once he had arrived at a considered view of the effect of the proposed amendment on the performance of his function in enforcing the law against abortion, he would have been seriously in dereliction of his duty, both under section 2 (6) of the 1974 Act and generally, if he failed to communicate it to the proper authority which, in the case of the Director, is the Attorney General.

That is a very carefully worded statement from an independent officer who is clearly distressed at the attempts to draw him into a political debate, who clearly wishes to stand over the criticism he made of the proposal that we have here today.

Mr. Killilea: Information on Mark Killilea Jnr.  Zoom on Mark Killilea Jnr.  And the statement was made through the Government Information Services. That is the important point.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  The record will show the entire statement made by the DPP and the real point is that the DPP severely criticises this wording because of the effect it will have on enforcing the existing law, the 1861 Act.

Mr. Killilea: Information on Mark Killilea Jnr.  Zoom on Mark Killilea Jnr.  At a selected time, through the Government Information Services——

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  The Senator may be unhappy about the time but he should listen to the content of it. It is a very serious criticism of this proposal.

Mr. Killilea: Information on Mark Killilea Jnr.  Zoom on Mark Killilea Jnr.  That is the most important part. They got the wires crossed.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  It is a criticism that no Senator in this House can avoid or rest easy on or ignore. I would submit that it [524] is a criticism that is very relevant indeed to supporting the motion which we have put down that this is not a wording which is a proper subject for a referendum by the people.

I turn now more specifically to the legal problems caused by the wording involved, which partly flow from and are partly aggravated by the ambiguity in that wording. This proposal seeks to add a new subsection (3) to section 3 of Article 40 of the Constitution. It must be of concern to Members of this House that the new subsection could affect existing rights under the Constitution and we have a duty to weigh that up. None of the other proposals to amend the Constitution — none of the other seven — had this difficulty. None of them threatened other possible rights. This one clearly can, and I submit, does and therefore we have to be very careful that in seeking to add something we do not subtract in an important and serious way from rights that are already existing and guaranteed under the Constitution.

Since I have got to this stage in my speech I should put on the record of this House the precise wording that we are considering in the English text. The Irish text will, of course, be the authoritative one but I propose to confine most of my remarks to the English text and it provides: “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 first significant legal problem arises from the reference in that context to “the unborn”. Here again I propose to refer to the serious questions and reservations expressed by the Attorney General on that particular terminology. In relation to the use of the word “unborn” he stated in the same statement on 16 February 1983 as follows:

The use of the word “unborn” in the proposed amendment is significant because it has not to my knowledge been used before in a similar context, that is as a noun standing on its own. [525] The word is usually taken in association with “child”, “person” or “human being”. The word, used as a noun, is not in fact defined in any of the standard English dictionaries. The reason why it is used in the proposal, without any supporting noun, deserves detailed consideration, as this is the word which defines the class to be afforded protection.

The Irish text of the proposed amendment, which must prevail in cases of conflict and which corresponds to “the unborn” in the English, can be translated as “the unborn living” or “the living unborn”.

In the event that the Supreme Court is called upon to construe the proposal, it could come to a number of different conclusions as to the definition of the class which is afforded protection. Undoubtedly a view which might commend itself to the court is that all human beings fall within the ambit of the amendment, and that a human being comes into existence when the process of fertilisation is complete.

It is, I believe, the position of many in the community that the inalienable right to life attaches to the newly fertilised ovum prior to implantation. The consequences of such a definition of the commencement of human life are matters on which medical opinion would be required.

If, as would appear to be the case, it is correct to state that certain contraceptives can operate after fertilisation, then these would be abortifacient if human life commences on conception. Thus the importation, dissemination and use of such contraceptives would be prohibited, and as an example, the use of the “morning-after” pill in the treatment of rape victims will not be permissable, nor will the use of such contraceptives in certain conditions of the health of a woman — e.g. valvular heart disease or diabetes.

As I said earlier there are, however, other conclusions that the Supreme Court might reach in defining what is meant by “unborn”. It might simply conclude that the question cannot be answered definitively. (In considering [526] the rights, if any, attaching to life before birth in the United States the Supreme Court there determined that to attempt to reach a conclusion on the issue would be to speculate because “those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus”.) Other conclusions might be that human life commences at the moment of implantation of fertilised ovum or when brain activity commences.

However, the point of time for which the most compelling legal argument could be made, other than the time of fertilisation, as being the moment of commencement of protection, could be said to be the time when the foetus becomes independently viable. I understand that this is probably at some time between 25 and 28 weeks of pregnancy.

Such a construction could be supported by an argument that “unborn” could be regarded as being applicable only to something capable of being born. The word “unborn” used as a noun must, as a matter of language, mean “unborn person”, “unborn child” or “unborn human being”. It could be argued that neither a fertilised ovum, a fertilised and implanted ovum, an embryo or even a foetus prior to the time when it is independently viable, would come within this definition.

The consequences of such a finding could be that there would be no constitutional prohibition on abortion prior to this stage of pregnancy.

So the Attorney General is showing the potential, quite conflicting interpretations and that is the fundamental problem with this wording. How is the voter to know whether he is voting for the life of the unborn begining at conception, the life of the unborn beginning at implantation or the life of the unborn beginning at the stage when the life is viable after quickening in the mother's womb? How is the ordinary punter to know? It makes a great difference at the early stages, in distinguishing between the moment of [527] the conception and implantation, to the use of certain types of contraceptives, the IUD, the “morning-after” pill and so on. It makes a difference at the other end of the spectrum in that if the Attorney General's reference to the possible interpretation as being at the point of viability is correct — and I think he is right to raise the problem because it is a problem of interpretation — then we would be doing the opposite to what the ordinary voter thought he was doing: we would be opening the door to very extended legalised abortion in Ireland.

We cannot run away from this problem and we cannot say this is lawyers' language and it is not a real problem. It is a real problem because the wording is not clear on that point and the only people who can clarify it are the judges of the Supreme Court afterwards. They may either clarify it or duck clarifying it but they are the only people with a voice which could possibly clarify it.

This problem of deciding on the point when a life begins, particularly for legal purposes, is not an issue that only this country has considered and thought about. It is also an issue which has been considered by the constitutional courts of a considerable number of countries, for example, the United States, the German Constitution and Austria. Portugal recently, in a debate on this issue, also had to address itself to that problem. More recently in 1980 the Commission on Human Rights in Strasbourg had to consider the question of the right to life as protected under the Convention. Since Ireland is a member state of the Convention, it is important that Members of this House would be aware of the approach adopted in interpreting the meaning of “right to life”. We do not know when the life of the unborn is to be defined. It may be of assistance to look at how this problem was considered and assessed by the Commission on Human Rights. We as a country have invoked the Commission and Court of Human Rights in bringing a case against the United Kingdom for torture and inhuman treatment and we must also consider what the Commission and Court of Human Rights have to say [528] in areas where we are proposing either to legislate or to amend our Constitution. It at least can be instructive and helpful to us.

There have been two cases which have led to a decision by the Commission and no case has as yet gone before the Court of Human Rights. The first case that came before the Commission in 1978 was brought by two German women basically advocating a “right to choose” approach and criticising the fact that the legislation in Germany at the time was in their view too restrictive and denied them a proper right to choose. They did not succeed in the case before the Commission in that the Commission made it clear that the Convention does not recognise as part of the protection of family life under Article 8 a right of a woman to choose in that particular context.

A more recent case, and one which I think is of direct relevance to the matter we are considering here today, is the case of Paton against the United Kingdom on which the Commission gave its decision on 13 May 1980. This was a case where a father of a foetus in the United Kingdom first of all tried to bring in an injunction before the courts of the United Kingdom to prevent his wife from terminating the pregnancy on medical grounds at an early stage under the English Abortion Law of 1967. He failed before the English courts because it was pointed out that there was no civil right to life as such of the foetus recognised under the common law and the courts would not recognise any basis on which he could obtain the injunction. He then brought his petition to the Commission on Human Rights in Strasbourg. The Commission first of all found that this potential father was a victim for the purposes of being entitled to bring it and to have it considered by the Commission. Then the Commission went on to consider the relevant articles of the Convention — Article 2 which refers to the right to life and Article 8 which refers to the right to respect for family life. I only want to refer to the discussion on life and the nature of life in the decision of the Commission. I am quoting from the European Human Rights Report, 1980, 3 EHRR, page 413, [529] paragraph 10 of the decision of the Commission, which states:

The Commission has next examined, in the light of the above considerations, whether the term life in Article 2 (1), first sentence, is to be interpreted as covering only the life of persons already born or also the ‘unborn life’ of the foetus. The Commission notes that the term ‘life’, too, is not defined in the Convention.

11. It further observes that another, more recent international instrument for the protection of human rights, the American Convention on Human Rights of 1969, contains in Article 4 (1), first and second sentences, the following provisions expressly extending the right to life to the unborn:

Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.

12. The Commission is aware of the wide divergence of thinking on the question of where life begins. While some believe that it starts already with conception, others tend to focus upon the moment of nidation, upon the point that the foetus becomes ‘viable’, or upon live birth.

13. The German Federal Constitutional Court, when interpreting the provision ‘everyone has a right to life’ in Article 2 (2) of the Basic Law, stated as follows:

Life in the sense of the historical existence of a human individual exists according to established biological and physiological knowledge at least from the 14th day after conception, (Nidation, individuation) ...The process of development beginning from this point is a continuous one so that no sharp divisions or exact distinction between the various stages of development of human life can be made. It does not end at birth: for example, the particular type of consciousness peculiar to the human personality only appears a considerable time after the birth. [530] The protection conferred by Article 2 (2) first sentence of the Basic Law can therefore be limited neither to the ‘complete’ person after birth nor the foetus capable of independent existence prior to birth. The right to life is guaranteed to everyone who ‘lives’; in this context no distinction can be made between the various stages of developing life before birth or between born and unborn children. ‘Everyone’ in the meaning of Article 2 (2) of the Basic Law is ‘every living human being’, in other words: every human individual possessing life; ‘everyone’ therefore includes unborn human beings.

14. The Commission also notes that, in a case arising under the Constitution of the United States, the State of Texas argued before the Supreme Court that, in general, life begins at conception and is present throughout pregnancy. The Court, while not resolving the difficult question of where life begins, found that, ‘with respect to the State's important and legitimate interest in potential life, the “compelling” point is at viability’.

15. The Commission finally recalls the decision of the Austrian Constitutional Court mentioned in paragraph 6 above which, while also given in the framework of constitutional litigation, had to apply, like the Commission in the present case, Article 2 of the European Convention on Human Rights.

16. The Commission considers with the Austrian Constitutional Court that, in interpreting the scope of the term ‘life’ in Article 2 (1), first sentence, of the Convention, particular regard must be had to the context of the Article as a whole. It also observes that the term ‘life’ may be subject to different interpretations in different legal instruments, depending on the context in which it is used in the instrument concerned.

17. The Commission has already noted when discussing the meaning of the term ‘everyone’ in Article 2 (para. 8 above) that the limitations, in paragraphs [531] (1) and (2) of the Article, of ‘everyone's’ right to ‘life’, by their nature, concern persons already born and cannot be applied to the foetus. The Commission must therefore examine whether Article 2, in the absence of any express limitation concerning the foetus, is to be interpreted: — as not covering the foetus at all; — as recognising a ‘right to life’ of the foetus with certain implied limitations; or — as recognising an absolute ‘right to life’ of the foetus.

18. The Commission has first considered whether Articles 2 is to be construed as recognising an absolute ‘right to life’ of the foetus and has excluded such an interpretation on the following grounds.

19. The ‘life’ of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk for the life of the pregnant woman. This would mean that the ‘unborn life’ of the foetus would be regarded as being of a higher value than the life of the pregnant woman. The ‘right of life’ of a person already born would thus be considered as subject not only to the express limitations mentioned in paragraph 8 above but also to a further, implied limitation.

20. The Commission finds that such an interpretation would be contrary to the object and purpose of the Convention.

I know it is very tedious for those listening to go on too long on a quotation. The point of the extract I quoted is that the Commission was considering whether the right to life in the Convention, which is not defined, meant that it extended to the foetus to give it either an absolute right to life or a right to life with limitation [532] or no right at all. It excluded the fact that the foetus was totally excluded. It said that there is a right to life of the foetus but it also excluded the absolute nature of that right. It said, and this is very relevant to the wording of this amendment, that the ‘life’ of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article and was, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited, even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the ‘unborn life’ of the foetus would be regarded as being of higher value than the life of the pregnant woman.

This, I must conclude, is the reason behind the Taoiseach's statement that it could pose a threat to a woman who at the moment would not be under threat in Ireland. If a pregnant woman, for example, has an ectopic pregnancy or a cancer of the womb, she will at the moment get proper medical treatment but if the right to life were considered to be from the moment of conception and considered in those absolute terms to equal the right of the mother, then it would in fact endanger the life of the woman. I assume that the Taoiseach had the advice available to him on this point. It is for that reason that the Commission came to the conclusion that because of the dependency of the foetus on the mother, that although there is a right to life of the foetus, that it is not co-equal to the right to life of the mother. That is an extremely important aspect in seeking to consider the scope of this amendment. For that reason, although some Senators may regard what the Commission do as not relevant, I think it is helpful to see how they have sought to tackle that problem.

Apart from the legal problem of the scope of the meaning of the life of the unborn and the relationship of that life with the life of the mother, there is also the need for us to look at the common law and the existing criminal law, in other words, the Offences Against the Person [533] Act, 1861. The debate, certainly in the other House and to a considerable extent the debate in the newspapers, on public platforms and in the media on this issue, has really ignored the Offences Against the Person Act, 1861, and sections 58 and 59 of it, even though they are the existing law.

The Minister, both in this House and in the other House, has referred to the fact that people are generally satisfied with it. I wonder if people understand the scope of it. I think that it is not so much that people are satisfied but that it was, until this debate started, a dead letter. In Senator Ryan's words in relation to statute law revision, it was deadwood. There has not been a single prosecution under the 1861 Act in this State. It might be worth looking at the scope of the prohibition contained therein. Just as constitutional law is to some extent a relatively specialist area, so too is the criminal law.

If you would bear with me, I propose to refer, not at very great length, to the only article I have seen since this great public debate was launched which refers to the 1861 Act, what it means and how it would be interpreted. This may be part of the consideration of the Director of Public Prosecutions. It is not quite clear what his worries or concerns were. There is an article which I would certainly commend to Members of this House. It is an article by Barry McAuley who is lecturer in Criminal Law and Criminology in University College, Dublin. In the first issue of the new series of Irish Law Times, Volume I, 1983 published in May 1983 he considers the scope of the 1861 Act. There has been a lot of talk about copperfastening and the Pro-Life Campaign have said that this amendment is to copperfasten the existing law. In order to copperfasten something you have to know what the existing law says and then you have to see whether the proposal just simply copperfastens or whether in fact it is changing fairly substantially the terms of reference. This article on page 8 of Irish Law Times, states as follows:

There is no such thing in the criminal law as an absolute prohibition. This [534] follows from the nature of legal rules. Although commentators with a religious bias are apt to overlook the fact, the law is a human institution whose rules and standards must be capable of being met by the ordinary individual. Standards pitched beyond the reach of the ordinary individual may be acceptable in ethics and theology, where indeed they may well be the norm, but they have no place in the criminal law. The criminal law is concerned with the regulation of human conduct, not with the perfectability of human nature. Consequently, its standards, unlike those of ethics and theology, must take account of ordinary human capacities and limitations. Indeed, since these factors determine the extent to which human conduct can be regulated, they may be said to be implicit in the very idea of legal rules and standards.

On the following page Barry McAuley goes on to say:

But prohibitory rules also presuppose that an accused had a reasonable opportunity of complying with them, even if the question of his capacity to do so is not in dispute. Consequently, a defendant who can show that it was humanly impossible to avoid doing what he did in the circumstances — because, for example, he was acting in self-defence, under duress, or out of necessity — will normally have a good defence to a criminal charge.

This last point is fundamentally important because it brings out the point that the law does not expect the individual to comply with its requirements at any cost but merely to do what is reasonable in the circumstances, that the defendant who pleads self-defence in answer to a charge of murder will have a good defence. He relates these legal principles to the present Irish law on the issue of abortion. He says:

It will be apparent from what has already been said about the nature of legal rules that no one can be convicted of a criminal offence unless he was in a position to comply with the prohibitory norm he has been accused of violating. [535] This fundamental principle has a number of important consequences for the law on abortion.

First, it gives rise to the inescapable fact that not all abortions are unlawful. [He is talking about the Irish law. This is true in two distinct, but related senses. Thus it is true in the weak sense that although a defendant may have done the act prohibited by section 58 of the Offences Against the Person Act, 1861, he will sometimes be excused on the grounds that he was not responsible (in the legal sense) for his actions.

For example, if someone was medically unfit, or the other case he cites is if the woman was not pregnant, thought she was and sought to terminate her pregnancy. He then goes on to the real point, that there is another sense in which it is possible that an abortion would be lawful under present Irish law. He says:

But there is also a strong sense in which abortion is lawful. This can perhaps best be seen by analogy with the law of murder. As everybody knows, not all killings are murder, in the sense that some killings, like some abortions, are justified. Thus a defendant who successfully pleads self-defence to a charge of murder will be acquitted, not because he has a good excuse for breaking the law, as would be the case, for example, if he was insane but because he has not broken the law at all. Similarly, a doctor whose patient dies on the operating table will not be guilty of either murder or manslaughter (assuming he was not negligent), since the performance of a properly conducted surgical operation, even if it involves a serious risk of death to the patient, is not an unlawful act.

However, it would be wrong to assume that these killings are lawful simply because the law allows the infliction of physical harm in the particular circumstances in which they happen to occur, that is to say, because all civilised legal systems recognise killing in self-defence or in the course of a surgical [536] operation as a defence to a charge of murder. On the contrary, such killings are lawful and, consequently afford a good defence to a charge of murder, because the act or acts which caused death represented the only reasonable option available to the defendant in the circumstances. In a word, they are lawful because of the fundamental legal principle that any course of conduct whether it be killing or failing to comply with an immigration order, is justified in the eyes of the law if there was nothing the defendant could reasonably do to avoid it.

Thus, to return to the case of abortion, it follows that the termination of pregnancy in circumstances in which it would have been unreasonable not to do so is justified in the eyes of the law, and therefore, lawful in the strong sense of that term, and that a doctor who performs the operation in those circumstances will have a good defence to a charge under section 58 of the Offences Against the Person Act, 1861. Indeed, it is submitted that a doctor who refused to terminate a pregnancy in these circumstances would be guilty of manslaughter by neglect if the patient died, as he would be in breach of the legal duty of care which binds all doctors in such cases.

He went on to point out that he would be allowed to withdraw from the case on conscientious grounds. He goes on to elaborate on the fact that there are potential exceptions where abortion would be justified under the Irish criminal law. He makes another important point in the article:

Likewise, those Catholic theologians and apologists who insist on limiting the exceptions to section 58 to cases of ectopic pregnancy and cancer of the uterus miss the point that the doctrinal justification for allowing abortion in such cases — namely, that the doctor's intention is to save the mother, not to kill the foetus — has no basis in the law. As every law student knows, intention in the criminal law is a term of art, in the sense that it includes both (i) a desire to bring about a particular [537] result and (ii) foresight that that result is virtually certain to occur, even if it is not desired. Consequently, it will be apparent that, if the exceptions to section 58 depended on showing that the defendant did not intend to kill the foetus, all abortions, including those allowed under the Catholic doctrine of double effect, would by definition be unlawful.

He points out, therefore, that the theory that the only abortions justified under the 1861 Act are under the so-called Catholic exception is not true; that that is not legally correct, that the legally correct position is they are justified if that was the only reasonable course that could be taken in the circumstances either by the doctor or by the woman herself. He ends, and this may be a somewhat paradoxical ending but it is in the light of this article by an expert in the field, as follows:

The amendment should be opposed not because abortion is already illegal, as its opponents continue to insist, but because there are many cases in which abortion is lawful, and because a society which turned its back on this fact would also be turning its back on the rule of law.

That may sound like gross heresy not only to other Senators but even to some Member of my own group. The difficulty in looking at this subject is that we have never debated the issue of abortion in either the Dáil or the Seanad until this constitutional amendment was put forward. The time, and the record of this House, have not been taken up with the subject and, as I said earlier — I got a nod from the Minister that he obviously agreed with me — the Offences Against the Person Act, 1861 is a dead letter. No one has been prosecuted under it because we export this social problem. That is something I will deal with at more length later. We should be aware at the same time, and we should accept perhaps not all of what is in that article if Senators object to aspects of it, that the correct legal interpretation by the criminal law, and presumably by the DPP in prosecuting under the criminal law, is that there [538] is not at the moment an absolute prohibition on abortion. The situation is not as the pro-life campaign have seen it. They have misunderstood the initial situation and sought to have a constitutional amendment in a manner and in a context which simply is not in conformity with the existing law.

This constitutional amendment is not directly related to the criminal law. It concerns the Constitution and rights under the Constitution are sometimes contrasted from the criminal law by calling it the civil law. It poses problems in that regard, the kind of problems I referred to when looking at the Paton case, the problem of identifying a constitutional right. There is no doubt at all that if there is one thing that can be said with certainty about this proposed constitutional amendment, the wording we have, it is that it is novel. It is a very new situation to seek to confer a constitutional right on the unborn, however the unborn is to be defined. That is not to say that the law has not recognised certain rights in unborn children. For example, specifically under section 58 of the Civil Liability Act, there is the right to sue for injuries to an unborn child when the child was injured in the mother's womb but the section makes it clear that that right to sue only comes into being provided the child is born alive. The child might die almost immediately but the child must be actually born alive in order for it to be possible to maintain a suit for damages for the injuries it suffered in the womb.

The difficulty, therefore, about creating a constitutional right to life for the unborn, however we are going to define the unborn, is that the unborn cannot assert that right. That is clear. An unborn cannot assert and seek to have in some way defended personally that right. Obviously, that would be lacking in common sense. Therefore, by asserting a right, by identifying a right and by putting it into the Constitution we would be providing that somebody must be able to assert that right for the unborn. This problem gives rise to another range of potential difficulties because it is for this reason that a number of lawyers and concerned [539] citizens are worried about the possibility of third party injunctions being brought perhaps to prevent a pregnant woman from going outside the country on the possible assumption that she may be willing to terminate her pregnancy outside Ireland.

If the right is a constitutional right then of its essence it cannot be asserted by the person on whom it is conferred, by the unborn, however defined, but it can be asserted by a third party, by concerned citizens of the unborn, by a father, as in the Paton decision, or the putative father or the husband of a married woman who wished to go abroad for an abortion.

Another area of legal problem that obviously arises relates to various advanced medical practices where the fertilised ovum may be removed from a womb and may be implanted subsequently after treatment, or may be implanted in another woman, and all of this would appear to be outlawed by the recognition of a right to life of the unborn, again depending on how that right to life is to be assessed and judged. The problem posed by the lack of clarity is a very fundamental one and it need not be a fundamental one. It is not impossible on this issue to be clear about what is meant. The constitutional amendment could say when the life begins and what is meant by the unborn. Why was this not done? Why was it not made clear and why are we discussing in this House so many related problems?

The second aspect of the constitutional amendment I wanted to refer to is the clause referring to the necessity to have due regard to the equal right to life of the mother. As I already mentioned, the Commission on Human Rights, has made it clear in the Paton case that under the Convention the right of the foetus is not equal to the right to life of the mother. We face a potential conflict there and with all this publicity on the issue although there has been no case under the old Offences against the Person Act it is not impossible to envisage that there could in fact be either litigation or a petition to the Commission on Human Rights pointing up this conflict and raising [540] a number of worries in that regard. Certainly the wording has given rise to concern on the part of the Attorney General. I should like to quote the passage in his statement where he looks at this phrase and sees great difficulties and dangers in it. He says:

“With due regard to the equal right to life of the mother.”

The next issue that is raised by the proposed amendment is the meaning and effect of the words “with due regard to the equal right to life of the mother.” The meaning of “with due regard to” is entirely unclear. These words are generally perceived to allow for, at least, termination of the life of the foetus in the cases of ectopic pregnancy or cancer of the uterus. The words “with due regard to” have been understood by many to suggest that the right to life enjoyed by the unborn was to be confined in some way. That interpretation is in my opinion incorrect. (The word “comhcheart in the Irish text is literally “the same right.”) The right to life of both the unborn and the mother is stated in the proposed text to be equal, and in these circumstances I cannot see how it could be possible knowingly to terminate the existence of the unborn even if such termination were the secondary effect of an operation for another purpose.

The issue of intention does not arise in the proposed amendment, and thus, it seems to me, that even if the termination of the pregnancy is an incidental consequence of an operation to save the life of the mother, it would be prohibited. The correct logical interpretation is that the right to life provided for the unborn is absolute.

If a doctor were to be faced with the choice as to saving the life of one, and thereby terminating the life of the other, then I believe that the only lawful conclusion to this dilemma would be that he could do nothing, absolutely nothing, which infringed on either right. It is only where there is no possibility of the foetus surviving, even without the doctor's intervention, that no difficulty will arise.

[541] Whatever about such a clearcut factual situation, the difficulties of applying the provision to other circumstances will be considerable. There may be cases where a doctor will have to consider whether he can treat a prospective mother for an illness which might otherwise shorten her life expectancy if this treatment will threaten the life of the foetus.

The proposed amendment will in my view tend to confuse a doctor as to his responsibilities, rather than assist him, and the consequences may well be to inhibit him in making decisions as to whether treatment should be given in a particular case.

It seems to me that the Attorney General is pointing to the same problem that the Commission on Human Rights was faced with, that if one asserts that the unborn, however it may be defined, has an equal right, a constitutional right, to the life of the mother then one prevents the protection of the mother in circumstances where she is protected under existing Irish law, in other words, where she has an ectopic pregnancy or has cancer of the womb or the sort of serious heart condition which would mean that if she carried full term it would seriously threaten her life. That is an extremely serious situation. It is presumably why the Taoiseach has called attention to this. It is fundamental. There should be a special women's campaign on this referendum. If this text goes through then women should be alerted to the dangers to their existing rights in equating the right of the unborn equally to the right to life of the mother that it threatens.

The Minister for Health, Deputy Desmond, in a recent statement pointed to the fact there were 500 operations for ectopic pregnancies last year. The termination of the pregnancy terminated the life of the foetus in those cases because it was necessary to protect the life of the mother. That is contrary to an assertion of an equal right to life and it is changed in a very dangerous and worrying way by this proposed wording. It is not helped by the lack of any guidance or clarity as to when that life begins, as to when the [542] life may begin. That is very important because if in due course, in the course of some litigation, the Supreme Court were to interpret that life begins at conception then there is no doubt that this would seriously affect the types of contraceptive devices which are widely used and in many cases by the lower income group of women, particularly the IUD which is more suitable to an older woman and very often is used by working-class women. Similarly, the treatment in rape cases, all of the practices which exist at present under Irish law, would appear to be in conflict with the wording.

It is fair to say and indeed a very moderate way of putting it that there are immensely serious legal problems in this wording and that they are compounded by the ambiguity of the wording. It would be one thing if the wording was clear and one could point to the problem and say: “This is what it means.” The difficulty is that it is so ambiguous and obscure that it is not possible to get precise guidance on it.

I should now like to turn to another grave problem with the wording, the fact that it has been criticised and rejected by all of the Church groupings in this State other than one Church, the Catholic Church. When the text of the Bill was first published I, having examined it, issued a statement criticising it as potentially sectarian. I recall that there was great criticism at the time of the use of the word “sectarian”. It was felt that it was not helpful to refer to sectarian, that this was wrong, that we are not a sectarian State and we do not do things like that. In fact since then — that was within days of this Bill being published by Fianna Fáil in November — everything that has happened has shown the potentially sectarian nature of the amendment because it has totally polarised. The official view of the Catholic Church is on one side and all of the other Church denominations are on the other side. I invite any Senator, particularly any Senator on the Opposition side who wants to defend the wording of this amendment, to explain to me what he reads into the word “sectarian”. I do not read anything more into it than the dictionary meaning, of or pertaining [543] to one sect, reflecting the denominational viewpoint of one sect. If we have one sect, the Catholic Church, on one side and all the other Churches on the other side, then surely it is an inescapable, logical conclusion that it is, if not overtly and blatantly sectarian, certainly potentially sectarian and apprehended to be sectarian.

It surely has not helped to have the various pastoral letters issued by Bishops of the Catholic Church advocating support for this amendment. In the early stages it is fair to say that neither the Bishops collectively nor individual Bishops were advocating support for any particular text. In fact, they were rather careful not to express a view until a text was published, but more recently it has been perfectly clear that they have supported this text at a time when there was very sharp and clear political divide on it. In other words, they have entered into the political arena on this. It is something I am sure historians, commentators and social scientists will comment on. It has already been referred to as the mother and child scheme, mark II. In my view, it is. We are witnessing the forces of the Catholic Church moving in on a political debate, taking sides on it and using the resources of the Catholic Church to advance those sides.

The document I referred to, under the heading, “The Archbishop Speaks”, is a good example, It is dated April 1983 and it was on circulation inside churches in Dublin last Sunday. It had been issued on April 10 and was available not outside as other things are — as one goes in and out people hand one something or other, certainly speaking for the church in Haddington Road — but inside, where one picks up the Mass leaflets for the day or the hymn sheets, if it a folk Mass. Beside those sheets was the publication, “The Amendment, A Pastoral Letter” which clearly refers to the proposed amendment. Even though the matter is being discussed in the Oireachtas and even though this House could introduce other wording, it referred to the need for this proposed amendment inserting specifically the right to life of the unborn. That [544] is very substantially a step backwards. It brings to the surface all the fears of minorities, not just religious minorities but those citizens of this State who are not members of any religious grouping. They, and all of us, can rightfully apprehend the way in which this debate has brought the Catholic Church substantially into the political arena securely and firmly on the side of this amendment.

By contrast, and on the other side, we have had what it is fair to say can only be described as the clearest statement by the minorities that I can recall, dissenting from such a constitutional amendment. The position has been made extremely clear by the official organs and representative voices of each of the main Church groupings. In a sense I welcome that very much because we are coming of age as a people, we are maturing to a stage where we are realising the price we are going to have to pay if we ever get the fulfilment of our aspiration for a united Ireland. We are beginning to realise that it hurts in that we cannot just go along and have our own moral certainties enshrined in the Constitution, that we have to listen to and have regard for the statements and commitments of others who are equally entitled to have their views respected and not to have them abused or simply overridden by the force of the majority in a referendum.

Since the issue is an extremely important one it is worth referring to some of these statements relating to the amendment. I have spent some time considering all the statements. Indeed, I have considered all the pro-life literature I have been inundated with; I read it all and I pondered on it. I have also carefully considered the statements issued by or on behalf of the various Church groupings in the country and it seems to me that implicit in all of them in some wording or other is the criticism of this cultural approach to the problem. The problem with this constitutional amendment is that it is a Catholic cultural way of doing things. One is morally right and, therefore, one puts it into the Constitution, assert it and that is the end of it. The Protestant ethos, and the ethos of the Chief Rabbi on behalf of the Jewish community, and the [545] ethos of other groupings in the State, would be one of freedom of conscience of the individual, that it is a moral issue which one does not put in any form into a Constitution for cultural or religious reasons. It is not so much the precise wording that is causing the fear. It is that it indicates a closed, pre-emptive society which is going to fasten down a debate, prevent freedom of conscience, make certain citizens feel less citizens of this State because they simply do not subscribe either to the approach or to the wording of reducing this to a constitutional amendment.

It is important that we understand this. In fairness, this may have been the problem faced by the Minister for Justice who clearly from his speech in the Dáil indicated he would be bringing in an amendment on Committee Stage and said he had gone to the trouble of discussing various potential versions with the various religious groupings with a view to trying to achieve some kind of consensus or resolve that problem.

It must have been clear to the Minister that this was fundamentally impossible because the issue is morally divisive. The idea of having an amendment is culturally and religiously unacceptable to the Protestant ethos, to the ethos of the Jewish community and to citizens who are not members of any particular religious grouping. For that reason enough attention was not paid to the letter sent on 17 June 1982 to the then Taoiseach, Deputy Charles Haughey, headed: “Proposed Amendment to the Constitution”. It said:

Dear Taoiseach,

I wish to advise you that the Standing Committee of the General Synod of the Church of Ireland at its meeting on 15 June last approved the following statement as the official comment from the Church of Ireland:—

We cannot emphasise too strongly the right to life and this includes the right of the yet unborn. The Lambeth Conference of 1958 received a Committee Report in which it was stated:—

“In the strongest terms, Christians reject the practise of induced abortion, [546] or infanticide, which involves the killing of a life already conceived (as well as a violation of the personality of the mother) save at the dictate of strict and undeniable medical necessity.”

This implies clearly that there can be medical circumstances in which a termination of pregnancy is required.

In our opinion a proposed amendment of the Constitution and a referendum will not alter the human situation as it exists in the country, contribute to its amelioration or promote a responsible and informed attitude to the issue of abortion. We gravely doubt the wisdom of using constitutional prohibitions as a means of dealing with complex moral and social problems.

Apart from the specific objection, the indication that in the considered view of the General Synod in its official communication there are medical circumstances which may justify on moral grounds the termination of a pregnancy, there is also the broader objection. There is an objection to using the means of a constitutional amendment on such an issue, a kind of blanket enforcing of a moral attitude on all citizens. Unless we understand how deep that cultural religious response is, unless we understand the gravity of the concern about freedom of conscience and the free and dignified moral viewpoint of different individuals who may differ on this issue then we have not begun to understand the major concern and the basis of the concern of the various Churches who have spoken officially on the matter.

Another statement which was issued in January this year in response to the continuing debate on it was one by the Council on Social Welfare of the Methodist Church in Ireland. This statement was issued because there was a tendency to suggest at the political level, particularly by Deputy Haughey, that the minority Churches, as he put it, had no objection to the Fianna Fáil wording. That was said on many platforms by the campaigners of the pro-life organisation. Hence there was a further statement by the Council on Social Welfare making it [547] perfectly clear that this was not the case and that they did not, could not and would not support this constitutional amendment. Again, we have to ponder because this is the first time in my political career that we have had such a clash between what is the intention of the Legislature if this goes through and the responsible and concerned views of minority denominations in this State. The press release of the Council of Social Welfare dated 21 January 1983 states:—

The Methodist Church in Ireland is opposed:

1. To any constitutional amendment on abortion.

2. To this particular amendment.

3. To the holding of a referendum on the matter.

It is quite false to assume that, because some Protestant opinion has been tolerant of the actual wording of the proposed amendment, the Protestant Churches no longer have serious objections to the introduction of a constitutional amendment in its present form. Protestant objection has all along been to the introduction of ANY amendment in any form. That opposition remains undiminished. Separate soft comment on the wording in isolation has been a most unfortunate red herring diverting attention from our unchanging resistance. Hence we wish our position to be made quite clear.

1. The Methodist Church is totally opposed to the introduction of any Constitutional amendment on abortion. Such an amendment would be a direct negation of the principles of all the mainline Protestant Churches. The Protestant Churches have stated, both separately and through the Irish Council of Churches, that Constitutional definition in this matter is repugnant to the concept of an open society.

We reiterate the delaration of the Methodist Conference, 1981: “This Conference is firmly opposed to indiscriminate abortion, but believes that the State's regulation of this and other matters affecting morals in the Republic should be a matter for legislation in [548] the Oireachtas and not for definition in the Constitution.”

2. The Methodist Church is opposed to this particular amendment. This should not need stating, since we reject on principle the introduction of ANY amendment, but because of the impression referred to above that this amendment was in some degree acceptable, we reaffirm our strong opposition. The Executive Committee of the Irish Council of Churches, when consulted in October 1982 about the introduction of an amendment along the lines of the present wording, “reaffirmed its belief that the State's regulation of this matter in the Republic or elsewhere should be a matter for legislation and not for definition by a constitution”. In point of fact the Methodist Council on Social Welfare DOES NOT regard the wording of the amendment as tolerable or innocuous, because it could not be left as an inert form of words in a Constitution. It would have to be acted upon in law. We believe that the Amendment, as at present worded, could be the basis, through litigation or other legal action, for a degree of State interference with personal and sexual privacy and medical ethics unparallelled in any country in the western world.

3. We oppose the holding of a referendum. We love our land and cherish its democracy and are sick at heart that this referendum seems to be going ahead. It may seem undemocratic to oppose a referendum, but real democracy means an open balanced society in which there is free play for opinion. Democracy is achieved slowly by a process of growing maturity and tolerance and trust. It can be destroyed at a stroke by a doctrinaire edict. Real democracy may even be damaged by popular referendum following an emotive ideological campaign, which may persuade people to vote in some degree for a closed society. It would be especially unfortunate when we seek a society of open understanding for all of Ireland, that one part of Ireland should be asked to define itself in this [549] respect as a closed society on conservative Roman Catholic lines.

Consequently we support the campaign against the Amendment and we note with approval the recent statement of the ICTU.

I submit that we could hardly have a clearer statement than that expressing very serious concerns about any proposal to amend the Constitution and more specifically about the proposal before us today.

I wish to refer also to a recent statement by the Dean of Saint Patrick's, the Very Reverend Victor Griffin. Dean Griffin took the trouble to ensure that this statement was circulated to every Member of the Dáil and Seanad so that if any of us missed it in the newspapers or the text had not been quoted in full, which it was, the Members of both Houses would have the full text of it. It is important perhaps for historians that the text be put on the record of the House so that it will not be said of us that we did something in ignorance or lack of appreciation or knowledge of the views of spokespeople for minority groupings in our country. We will have done it in the teeth of their protests and assertions of their rights as citizens in our land. So that the full picture be known, I refer to the statement by Dean Griffin. He says:

“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.”

Protestants in Ireland are utterly opposed to abortion on demand as a means of birth control or simply to terminate an unwanted pregnancy. But no Protestant Church or Protestant organisation has campaigned for the inclusion of an anti-abortion amendment to the Constitution. Why? Because

1. Protestants feel that the law governing abortion is really a matter for the Dáil. Abortion is already illegal under present legislation. Protestants feel that the Constitution should steer clear of [550] controversial moral questions. It should have wide acceptance, being the expression of a common unity and avoiding divisive issues. Such issues should be a matter for legislation after debate and decision by the Dáil and not a matter for the Constitution.

2. The Amendment, if passed, will do nothing to deal with the social problems underlying abortion. Nor will it prevent those who wish to have abortions from travelling to England, unless we are to have medical examination at the ports of all women of childbearing age.

3. In a time of severe economic recession the country can ill afford to spend nearly one million pounds on a referendum. If such money is available it would be better spent in alleviating distress and helping to improve the quality of life of the deprived and underprivileged sections of our community. (For example, housebound disabled people still have no postal vote in the Republic, yet we appear to be obsessed with the ‘rights of the unborn’). We should get our priorities right.

4. The proposed wording of the amendment is ambiguous. It has been formed in such a way as to appear non-sectarian. But if the amendment succeeds and the ‘life of the mother’ is interpreted by the courts as merely physical life, then abortion for, say, rape or incest or deformity of the foetus would be unconstitutional and a criminal offence. Thus the generally held Protestant ethical view which would allow abortion as a last resort in certain unfortunate exceptional cases, as the lesser of two evils, would be outlawed by the Constitution.

If the term ‘life’ is meant to be taken in a wider sense to cover the health and wellbeing of the mother why is this not made clear in the proposed wording of the amendment? Is it because such wording, allowing for abortion in certain circumstances other than where the life of the mother is at risk would be unacceptable to the Roman Catholic Church? Since there is no objection to the proposed wording by even the most conservative Roman Catholics associated with the so called ‘Pro-Life’ campaign it would appear that they see the proposed form [551] of words as ruling out all abortion as unconstitutional with the sole exception of that which is permitted by the Roman Catholic Church—which indeed they refuse to call abortion. They see the amendment as embodying Roman Catholic teaching in the Constitution and they further imply that the Roman Catholic ethical position on this matter is the only true Christian and moral viewpoint and this should be enforced on all citizens, Roman Catholic and non-Roman Catholic alike.

No society can discard the ethical ethos which has formed and fashioned it. Irish society cannot discard its Christian ethos— this is part of our public morality and is based on Christian consensus. But where Christians differ sincerely on certain matters of morality such as abortion, the State, if it claims to be democratic and non-confessional, should not enshrine a particular denominational viewpoint, even a majority one, in its Constitution, to the outlawing of all others. This is an infringement on human liberty.

5. If an unborn child or ‘human being’ is equated with a fertilised ovum, even before implantation in the womb (the Roman Catholic view), then certain contraceptive pills and devices such as inter-uterine devices could be declared as unconstitutional as abortifacients. Herein lurks a danger to family planning clinics which prescribe these methods of contraception as the most suitable in certain circumstances. The Protestant would regard this as an invasion of privacy and a denial of the rights of conscience and individual liberty.

Generally speaking the Protestant would say that a fertilised ovum is a human life with the potential of becoming a human being or person. There is a gradual development from fertilised ovum and embryo to foetus right up to the moment of birth. No consensus exists as to at what point exactly there is a ‘human being’ or ‘child’ present. You have a right to your opinion and I to mine, but to enshrine one particular denominational opinion in the Constitution is sectarian.

6. How will the courts interpret the [552] Amendment?

Surely they will be guided by what the electorate voted for and this will be seen in the context of the so called ‘Pro-Life’ campaign which pressed for the amendment.

Since (1) the so-called ‘Pro-Life campaign people see the wording as conforming to Roman Catholic teaching,

and (2) the vast majority, 95 per cent of the State are Roman Catholics,

and (3) the Roman Catholic Bishops have voiced no objection to the wording,

it would be very difficult for the courts to give the amendment a liberal interpretation to take into account the Protestant position. For if these words are susceptible of a wider interpretation to allow for abortion say, in rape or incest, the courts would be entitled to ask why this was not made clear in the wording. The onus will be on the opposition to prove the exception and the chance of doing so will be remote indeed. A form of words was devised which on first reading may seem non-sectarian and innocuous, but which after further study implies a sectarian point of view. The Amendment is sectarian not so much in what it says but in what it omits to say, what it fails to spell out. Here is the danger for Protestants and for those who object to the rigid view of the Roman Catholic Church.

7. This proposed Amendment is one more example of our sex obsessed society. The idea of sin seems to be confined to the sexual sphere. The moral writ of ‘right’ and ‘wrong’ runs only in the domain of sexual morality. Hence far more emphasis is placed on so called sexual rectitude than on matters of personal honesty, national righteousness and social justice. It is a sad reflection on our society that for example the career of a politician is more at risk if he is suspected of being out of line with the Roman Catholic teaching on divorce, contraception or abortion than if he is suspected of indulging in dishonest business transactions.

8. We have to ask ourselves the question—What sort of State do we want? Do we want a Roman Catholic confessional State or a pluralist society in the Republican [553] tradition of Tone and Davis? We can't have it both ways.

I submit that letter demands more of a response from the biggest grouping in this House than they would abstain particularly in the light of the expressed views of the leaders of the Protestant Churches. I am not quoting from the Chief Rabbi who has, on radio and television programmes in which I have taken part, and in the public press, also made it clear that he and the Jewish people are opposed to the idea of having a constitutional amendment at all and to the wording of this one. We must ask ourselves how do we reconcile all these statements which are perfectly clear that they do not want this amendment and see it as sectarian with the fact that it seems to be meandering through? Unless the motion that I am moving this afternoon is carried this will go by default to the people of Ireland.

As I said at the outset, I am not so pessimistic about the good sense and “cop on” of the people. A great many people are rightly concerned about this amendment. That does not take away our responsibility and role as Senators to reflect on it and take a stand even if it leads to internal party difficulties. None of us can be unaware of serious difficulties within the Fine Gael Party. I always felt that the strong view expressed by leaders of Fine Gael was that they would put the country first. How does one put the country first and abstain on this? How do we allow an amendment which the Taoiseach has said is dangerous and unacceptable because of the threat to the life of the mother, which all the minority denominations have denounced as being unacceptable and sectarian, which the Catholic church is publicly canvassing for and which Catholic Bishops are distributing statements about in churches? How do we reconcile that with putting the country first? It is evidence of not wishing to be bothered further by a troublesome subject. I submit that it is a subject that will not go away and it would be better—if I may say so with deference—to be bothered by it at this stage and ensure that the Bill does not receive a Second [554] Reading from this House. This might have a substantial influence on what might happen later. It is possible the Minister might decide to establish a joint committee of Deputies and Senators to consider all the implications of what is being discussed and to consider the law in this area. It is something that warrants further discussion and is not an urgent priority as such. It is not something that should be rushed through.

I turn now to the last heading under which I will consider the amendment that is, the social problems and aspects of it. I propose to remind the House of how the proposal emerged and surfaced in the first place because it is both unusual and worrying to reflect on how the germ of the idea came to be and how the Bill is now before us in the Seanad today.

The public campaign to have a constitutional amendment was launched by a group calling themselves the Pro-Life Group on 27 April 1981. Prior to that nobody to my knowledge was calling for a constitutional amendment. Certainly there had been no debate in the political parties, no motions at annual conferences, no political discussion calling for or pointing to the need for or warning of the danger and the necessity for a constitutional amendment. A news release of 27 April 1981 entitled “Campaign for Pro-Life Amendment to the Constitution” states:

A campaign for a constitutional amendment to protect the life of the unborn child was launched in Dublin last night (Monday, April 27) by a group of organisations acting with the full support of the Professors of Obstetrics and Gynaecology in the Irish Universities. Initially directed at the Government and the political parties, the campaign will also include, if necessary, a nationwide petition in support of the proposed amendment.

The organisations involved are,

The Catholic Guild of Pharmacists.

The Catholic Young Men's Society of Ireland.

Christian Brothers Schools Parent Federation.

Congress of Catholic Secondary School Parent Associations.

[555] Council of Social Concern.

Irish Catholic Doctor's Guild.

Irish Guild of Catholic Nurses

Irish Nurses Organisation

Irish Pro-Life Movement.

Muintir na Tire.

National Association of the Ovulation

Method in Ireland.

The Responsible Society.

Society for the Protection of the Unborn Child.

The news conference was addressed by the Chairman of the group, Dr. Julia Vaughan, obstetrician and gynaecologist. It gives the full text of her remarks. I do not propose to quote the full text but I want to show that the intention was to have an amendment that would secure the absolute right to life of the child. On page 4 of her statement she says:

While the precise wording of the actual amendment will be a matter for others, in accordance with the legal advice available to us it is proposed that it be along the following lines:

“The State recognises the absolute right to life of every unborn child from conception, and accordingly guarantees to respect and protect such rights by law”.

The wording subsequently adopted by the then Fianna Fáil Government and later reactivated by this Government does not follow that exact wording. It does not use the words “an absolute right to life”. For the reasons that I have given it may achieve the same result and be an absolute right of the foetus. By equating it with the right to life of the mother it may have the effect that the Attorney General fears—it would prevent any steps being taken where a mother's life was seriously at risk and therefore it would have the effect of doing what the pro-life group thought initially. The pro-life group are strong supporters of and are making the running of this text and, therefore, they clearly see that it conforms to what they want to achieve by way of an amendment to the Constitution.

That was 27 April 1981 and on 30 April 1981 the then Leader of the Opposition, Deputy Garret FitzGerald, gave a commitment [556] that he supported the idea of having a constitutional amendment and that he would, when in office, seek to introduce it. In mid-May the then Taoiseach, Deputy Haughey, gave a commitment as Taoiseach that he would introduce a constitutional amendment. There were elections in June 1981 and a new Government took office. Subsequently the pro-life group were anxious to renew their campaign with the incoming Taoiseach and there was an exchange of letters between Dr. Vaughan and the Taoiseach. This exchange of letters I received, courtesy of the Minister of State, Deputy Gerry L'Estrange dated 21 August 1981. He circulated it certainly to Members of Labour and Fine Gael, if not to all Members of the House, with a covering note which states:

Dear Senator,

I am sending you a copy of the recent correspondence between the Taoiseach and the Chairman of the Pro-Life Amendment Campaign, about the proposed constitutional amendment to guarantee the right to life of the unborn child, for your information.

Yours sincerely.

The letter from Dr. Vaughan is dated 10 July 1981. It is on pro-life amendment campaign notepaper and states:

Dear Taoiseach,

You will recall that at our meeting on 30 April last you indicated the full support of the Fine Gael Party for our proposal that the Constitution be amended in order to guarantee the right to life of the unborn child. We were appreciative of the manner in which our case was considered and responded to, and of the commitment to a constitutional amendment subsequently contained in the Fine Gael programme for the General Election.

As you are aware, this commitment is not referred to in the joint document “Programme for Government 1981-1986”, and in consequence some apprehensions have been voiced within our constituent and supporting organisations. It would be extremely helpful, therefore, if we could have a brief note from you with which we could reassure our members in regard to Government [557] intentions in the matter.

With good wishes to you in your new and immense undertaking.

Yours sincerely,

That was replied to by the Taoiseach in a letter dated 5 August 1981 as follows:

Dear Dr. Vaughan,

Thank you for your letter of 10th July, 1981, about the protection of the right of life of the unborn child.

There is no significance whatsoever in the fact that the commitment is not referred to in the document “Programme for Government 1981-1986”.

The Government is unalterably opposed to the legalisation of abortion and is committed to taking whatever steps are necessary to ensure that an appropriate Constitutional amendment is brought forward.

The Attorney General is now examining the form such an amendment might take.

Yours sincerely.

That was signed by the Taoiseach, Deputy FitzGerald. Interestingly, very shortly after that the Taoiseach opened the session in this House with his commitment to a constitutional crusade. I cannot recall any specific mention of his commitment there or how he reconciled that with the constitutional crusade to remove any sectarian legislation or aspects of our Constitution and laws. That is the chronology of the event.

Then, as Members of the House well know, we had two subsequent elections in quick succession. This gave very real political leverage to the organisations who had come together as the pro-life campaign. They had Deputies and aspirant Deputies in a very vulnerable position. One has to pay credit to their tactics, they were very effective at using that vulnerability to ensure that commitments were given. Questionnaires were circulated, signatures were looked for, letters were written, Deputies and sometimes the running mates of Deputies were making statements which worried sitting Deputies looking to be returned to their seats and so on. Ultimately, the commitment resulted in the text being published in November 1982. The Fianna Fáil Government fell shortly afterwards and [558] a commitment was given during the general election that the Bill would be reactivated and that there would be a referendum before the end of March 1983. It is really for social scientists and historians to guage the pressures which were on politicians with the electoral system that we have and the tight voting there has been that such commitments were given.

I have given a brief chronological account of how this first surfaced and got political attention. It is equally depressing to look at the position prior to and since April 1981 when the campaign was launched. Prior to that there had not been a proper debate on the question of abortion. We simply did not debate it or concern ourselves with it. We exported this social problem to various cities in the United Kingdom. We had the figures available to us year after year. We knew that the graph of figures was going up dramatically. We were aware that the incidence of termination from Ireland was beginning to alarm not just doctors in this country but doctors in the receiving country as being higher than they would expect it to be if there were laws for termination prevailing in Ireland. We have an artificially high export abortion rate. That is how serious the problem is.

There is a lack of access to information on methods of family planning and knowledge about them. This environment puts too much emphasis on the pressure to terminate a pregnancy which the woman for one reason or another feels she cannot cope with. It is not the first time and it will not be the last time that I will have to say in this House that we have every reason to be ashamed of ourselves. The political parties and the political, cultural broad world here in this part of the State have every reason to be deeply ashamed that we did not consider at an earlier stage the real problems involved.

I intend to consider those real problems because since 1981, in all the discussion and debates we have had, very little attention has been paid to the real problems of the situation. We export our social problem. We had official figures mentioned about a week ago by the Minister for Health of 5,000 women in 1982 going to various cities in the United [559] Kingdom to have their pregnancies terminated. The view widely held in the medical profession and by others who are knowledgable in the field is that the figure is substantially underestimated. It is the best that can be done with the declared addresses and names of women who go abroad. It is compiled from that but it is on the conservative side. The figure is probably substantially higher than that and it has been growing dramatically in the last decade.

It is important for this House to reflect on the criticism that has been made of us by the country that deals with this social problem for us. It is interesting to get some information back from the agencies and bodies who are at the receiving end and who help these women in one way or another either in relation to looking for places where they will have their pregancies terminated or counselling at the time or helping them afterwards or just simply knowing of the state in which they arrive. The criticism that comes back to us about the situation is that Irish women are the most disadvantaged group going from other countries to the United Kingdom to have pregnancies terminated. They are the most disadvantaged group because they are the most ignorant of where they should go: they are the most conscious of guilt and fear about what they are doing. They are the most unhelped beforehand. The vast majority of them have had no prior counselling or assistance.

In the case of married women, who form about 25 per cent of the total who go, a significant number have not told their husbands, and in the case of a very significant number of them, they do not have any address of the referral body they are hoping to get to. There have been graphic descriptions of women arriving at Euston Station asking a taximan or carrying the advertisement of a PO box in their handbags, and asking if anybody knows where this address would be, and so on.

This is a terrible indictment of us. We have every reason to be ashamed of the way in which we have not addressed ourselves [560] to the real problems. Not only have we not been concerned at all about the degree of suffering, disadvantage, guilt, helplessness and discrimination against women which are reflected in all of this but we have not looked or even wanted to look at the reasons why this may be so.

We do not appear, even in the course of a debate on this constitutional amendment, to want to address ourselves to the real issue of why it is that despite the substantial and certainly religious environment in this country and the concern for family life that is clearly evident here we have an unprecedented and, as far as the foreign jurisdiction is concerned, an artificially high abortion rate. Applying different considerations, English doctors and social scientists will say that the Irish abortion rate is artificially high because of all the surrounding circumstances of this country that is so concerned to pay at least lip service to the rights of the unborn.

This was brought home to me very graphically by a personal experience. On the evening when the Dáil was voting at Committee Stage on this Bill, and there was obviously a good deal of attention on how the vote would go and the prediction was that the Government would be defeated—which, of course, they subsequently were—Cherish, a self-help organisation which for over a decade have concerned themselves with the position of the unmarried mother and single parent in our society and have done very valiant work in relation to housing, social welfare, child care rights, creche facilities and so on, invited the press to a conference from 5 p.m. to 7 p.m. in Lower Pembroke Street. The press conference was for the purpose of re-opening the headquarters of Cherish which have been refurbished by AnCO, using the Youth Employment Scheme to do the work. The headquarters, as is common in these circumstances, had got quietly back into intense activity for some months, but Cherish had chosen that date to mark, and indeed to use it to thank AnCO, the Eastern Health Board and other agencies that had helped from time to time.

Cherish were doing this by way of a [561] press conference hoping that it would get sympathetic consideration from the press which would help them in their work. They depend to a considerable degree on publicity for their work to alert pregnant girls in the country: they are a self-help group to which they can come, and there is warm, friendly and specialist advice to help them in one way or another to cope with a pregnancy and, if possible, to keep the children for themselves or, considering the other options available, to have the children adopted and so on.

Although one journalist came along that afternoon, fleetingly, other journalists did not turn up. Why? It was because they were all here in Leinster House, for the great non-event of all time in one sense, the defeat of the Government of the day on a proposal to amend the Constitution: because they were all hanging on the statements of people like Deputy Oliver J. Flanagan. I am not critical of Oliver J. Flanagan—that is not what I am interested in—but what is his relevance to the kind of issues that we should be discussing? What does he represent in social pressures in modern Ireland? Yet he has been photographed, quoted, put on a pedestal, loved by the media. They hang on his every word every time there is a dot or a comma of a change in the circumstances, and they are ignoring the very issues and problems which give rise to the pressures for termination of pregnancy. I do not think you are going to have to call me to order, Sir: it is not in my nature to criticise——

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  It is not normal to mention the names of people outside the House in a critical manner.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  I am not being critical of Oliver J. Flanagan. I am not trying to be critical of him. I am critical of the press. The press have blamed politicians for this debate. There has been a lot of press criticism, much of it warranted, about the nature of the debate we are having on this issue. But the press are as much to blame for a lot of their focus and attention on this—it is Box and Cox situation. The press are as hooked on the irrelevancies of this debate as the politicians, and they are as reluctant to look at [562] the real issues and as reluctant to go out to examine and face up to the desperate housing needs of unmarried mothers or single parents in Ireland. These housing needs are getting worse as there are more pressures on private rented accommodation in Dublin. Although Dublin Corporation and other local authorities have done some work to provide units of housing especially suitable to one-parent families, they are only beginning in a very small way to chip at the surface of the problem.

Similarly, we have blatant discrimination in our social welfare code against the unmarried mother in Irish society. In every other category we have a social welfare allowance which is payable when the need is established, and this has existed since 1973 in the case of an unmarried mother, but we also have a social welfare benefit at a higher level for a person who has contributed in insured employment and has a sufficient number of weeks of insured employment to qualify.

That does not apply to the unmarried mother. For some reason the logic behind which beats me, an unmarried mother who has been in insured employment for a decade and who has built up enough to get the higher rate will not get any social welfare benefit. That is discrimination which shows an attitude: it shows that we have not really come to terms with what we pay lip service to. We have not really decided that we intend to change Irish society and concern ourselves about the one-parent family in Irish society, which is, I would have thought, at the pivot of this whole discussion. The born child of a one-parent family is of a great deal more practical concern than all this lip service to the academic and esoteric rights of the unborn, giving rise to the complex legal problems I have outlined.

It is depressing that the profile of our society in this context is one which denies us the right to call ourselves a caring society. We have not had a political focus on the one-parent family. We really have no excuse for this. There have been many expert reports, statistics and documentation on this issue. Even recently there have been very good reports which [563] should have given rise to political structured action on the matter. For example, Eithne FitzGerald is the authoress of a NESC report on family income support which pointed to the peculiar difficulties of one-parent families. In this context I am using the term “one-parent families” to include widows, widowers, deserted wives, deserted husbands and unmarried mothers that I particularly focussed on earlier.

All of these families are more in need of structured support and yet we never consider them. We never had a White Paper on the one-parent family. We now have a Minister of State for Women's Affairs and hopefully she will see the need for a commitment over a period of two or three years to the various range of central and local authority measures and health board measures which require to be taken if we are going to begin to cope with the housing, social welfare, child care, income support and maintenance needs of these parents and children.

Apart from the one-parent family, there are, in fact, a number of others identifiable, problem and vulnerable families, who need help. I am not saying that it is from this kind of background or with this kind of problem that the Irishwomen who seek to terminate their pregnancies will come, because the interesting thing is that this is not the case. They come from every social stream and every walk of life and they are married, single, divorced, widowed. We have had them all, and therefore we cannot presume to know the motivation, but we can know a lot about our own society.

We can begin to realise that the build-up of pressures must give rise to a considerable number of cases in which Irishwomen go abroad to terminate pregnancies, because there is no other option open to them. The fact that we do not seem to discuss the constitutional amendment in this context is itself very revealing. Any attempt made, certainly as I have found it, in a public context or on a public platform to broaden the debate meets with the response: “Oh, well this is the basic human rights issue; we must deal with it first” and then somehow all [564] the other broader social problems, as is apparently envisaged, would fall into place. But that is not the case.

I would like to welcome the Minister of State for Women's Affairs to the House now. A moment ago I mentioned her appointment and referred to the absence of any political framework of concern for the one-parent family in Irish society and this contrasts, for example, with Northern Ireland. There have been very structured, focussed reforms for one-parent families in Northern Ireland on the basis of Government reports specifically concentrating on the needs of one-parent families, including the whole range, from the widow, widower, deserted wife, deserted husband, prisoners' wives and so on, and unmarried mothers or unmarried fathers. All of these have particular pressures and particular needs which as a society we are simply completely failing to deal with.

The other social aspect of the problem which I wish to refer to specifically and draw attention to is the way in which the abortion rate is aggravated by the lack of a comprehensive service and information policy on family planning, because once again the information coming back of women who have gone for terminations of pregnancies in various cities in the United Kingdom is that a very significant proportion of them have never used contraceptives, have never had access to contraceptives and never engaged in any kind of family planning, artificial or otherwise. This is very revealing.

We really have the worst of all possible worlds in Ireland. We have too high an abortion rate and we close our eyes and export it. If a commission of humane people were to come to study us, if we had people coming from different European countries to look at the situation of the family here, not just the married family, but family life in Ireland and our whole attitude towards one-parent families and abortion, would we not be ashamed of what they would conclude about us? Would we not be ashamed of the lack of attention paid to this whole area in the Dáil and the Seanad over the last several decades and would we not be ashamed of the hasty and ill-considered [565] way in which a political commitment was given that the proposal in this amendment would be carried through, and a further political commitment that it would be given priority?

It is depressing for those, like, for example, the former Senator Maurice O'Connell, a very distinguished former Member of this House—may I mention him, certainly not in the context of criticism in any way? I specifically want to draw attention to him because he aspires to a vision of Irish society, which I would very largely share with him, and he must feel a terrible sense of disappointment at the present lost opportunity; we are losing the opportunity to make the best of this constitutional debate. It was inflicted on politicians by a very well organised lobby. They were caught at a vulnerable time and certain commitments were given which, in retrospect and on reflection, more senior politicians might have been either clever enough or thoughtful enough not to have given as quickly and globally as they were given.

But the opportunity to examine our society and the social forces and the inequalities and inequities in our society, has not been taken up. Again, if I could go back to that meeting of Cherish which I was talking about, obviously Cherish were very disappointed that there was no press coverage because the journalists were all wrapped up in the excitement of what was happening in this House. But I took the opportunity to talk to some of the very experienced social workers who either worked for Cherish before or are still involved with it and worked very near the ground on this issue in housing estates in and around Dublin. I said to them, because I was very interested. “What is the view or discussion in your area?” and they said: “What discussion? What amendment? It never comes up. The women I deal with, ordinary workingclass women, never mention it. They do not even know that there is a proposal to amend the Constitution”.

I am sure that is true. We have this unreal debate taking up vital parliamentary time, dividing us politically, and as a country dividing churchmen against churchmen and individual against individual, [566] even dividing families. Yet, the people in the front line, coping with economic and social difficulties, with real needs that we should be diverting resources towards, are completely unaware, and there is no reason why they should ever become aware because it is totally irrelevant to them except for the potential legal effect it can have in some cases in which there may be a grave risk to pregnant women who at the moment would get adequate medical care and attention in Ireland and who may not now. So, we may inadvertently increase the foreign travel on the abortion trail; we may further increase our export of this social problem.

The opportunity to look at the pressures, to show empathy with the women involved, is something which is not being sufficiently discussed, particularly in the Oireachtas because by the nature of things the majority of contributors have been male. I would say as somebody who has had children that it must be rare enough for a woman who is pregnant not at some stage, in some way or other, to have the thought of possible termination go through her mind, even if it is thinking of it with the intention of immediately rejecting it. If we were honest, we would say that women of child-bearing age or women who have had children, have had the thought, that it was there about the pregnancy, and if that thought is combined with enormous emotional and social and economic pressures then there is a sort of absurd cruelty in pondering a further level of guilt for the women concerned by this proposal for a highfalutin constitutional norm. As I say, happily a very significant number of them are certainly not aware at the moment that the debate is taking place, which is, I would suggest, not something we could be very uncomfortable about.

Another aspect of the debate which I would like to refer to is, perhaps, a more optimistic one for my particular perspective. Given the way in which the debate was launched and the influence of this small minority, and the active role being played by certain Catholic bishops which I criticise very severely as being the negative aspects of this debate.

[567] What is encouraging is the underlying evidence that the people are much less persuaded than they might have been. I have been very encouraged at the number of people who have certainly volunteered to me, and I know volunteered to others, who are opposed to the amendment, that although they are totally opposed to abortion they intend to vote ‘no’ if this wording goes forward. They are unlikely people, grandmothers, conservative Catholics who are going to vote ‘no’ because they do not like all the surrounds of how this happened. It makes them apprehensive about what is next on the list: what is the next issue that the pro-life campaign type of organisation might try to pressurise politicians on.

Why is there such an academic debate when there are so many other real problems like unemployment, housing, and equity in our taxation system that should be occupying our time? Therefore, it is not from among the young urban dwellers that all of the defence and criticism of the proposed amendment are coming. Both are very widespread and dispersed in age and background and in income groups. It makes me feel that if this Seanad fails in its responsibility—and it can only fail in its responsibility if the largest group in the Seanad abstains; and again, I have to appeal to the Fine Gael group to reconsider their stated position that they intend to abstain in the light of the very important considerations—if they abdicate from their responsibility in the matter, then I am still left with a reasonable degree of optimism that the people of Ireland will give the politicians what they deserve by voting ‘no’ on this and indicating that they want us to concern ourselves with the real problems and the real social issues and the economic situation facing us and not try to superimpose an artificial constitutional norm which is morally divisive.

Mr. Ferris: Information on Michael Ferris  Zoom on Michael Ferris  I think it is only fair that other people in the House would have an opportunity, particularly in the initial stages of the debate, to contribute to it. I want formally to second the motion to refer this back, as my colleague, Senator [568] Robinson, has said, on the grounds of ambiguity and the fact that it is so unclear and in its present form could have a counter-effect to what the pro-life people set out to achieve initially. In view of the actual comments that have been made in another House, and I will not refer to the people who made them, it is appropriate that at the beginning of my contribution I should state my personal situation in regard to this whole pro-life amendment, and my personal attitude both to that and the necessity for it, and my stance on abortion.

I was in support of the principles of a pro-life amendment when the proposal was first launched. I could see absolutely nothing wrong with the concept that we should be acting in keeping with the philosophy and the policy of all the political parties in the country, who have stated categorically in all their documentation that they are against abortion. The natural follow-through of that was that if that was so, certainly a pro-life amendment would be in order, to ensure that no other jurisdiction outside of our own could have a decision reached in another court which could put that fundamental philosophy in danger.

I am categorically stating as a rural representative that I am totally and completely against legalised abortion on demand. I even abhor the word. If anything or any damage has been done in this whole debate it is the fact that now people are talking freely about what was in the past an unforgivable action, the action of abortion.

That brings me to my subscribing to the resolution asking for rejection of the Second Reading on the basis that I personally have the gravest reservations on what this wording is about, what it will achieve in the country in the minds of the electorate—this is a constitutional referendum we are talking about—and what will the end result be legally, the interpretation legally put on this wording in the event of a referendum being carried? It is because I feel that there is an element of damage likely to occur that I subscribe to asking this House to reject the Second Reading. I completely concur with Senator Robinson when she defended the [569] right of this House not alone to make its views known on this subject and on the wording before us, but to play a major constitutional role in the determination of what the Dáil has decided should be the wording of a constitutional amendment Bill.

I have gone to a lot of trouble personally as a public representative to be advised in the best possible way I could be, morally, religiously, medically and legally, and anybody I spoke to within the community which I represent was not entirely satisfied with the actual wording, even members of the pro-life group who originally, as Senator Robinson has stated, had other views on the actual ultimate right to life of the unborn: indeed, when originally advice was sought on the wording they had recommended, I gather that the Catholic hierarchy had reservations, because it went beyond what normal Catholic theological teaching in this area is. There are, whether we like it or not, certain procedures in certain circumstances in this country which are acknowledged by the Catholic church as being acceptable procedures to follow medically which would ensure that the life of the mother would be protected.

One would beg the question, if that is the case, why the framers of this wording failed to come up with a wording which would acknowledge that. We should just take the wording as recommended before us and tease it about a bit. I want to do it on the basis that I was in favour of a pro-life amendment. Why did we not have the wording “That the State acknowledges the right to life of the unborn”—and I will deal with the point that Senator Robinson has made; I just want to give my view on it—and having due regard to the right to life of the mother acknowledges that in certain medical circumstances where either the foetus or the embryo or whatever you accept as being the unborn life, endangered both its own survival and the survival of the mother, primary regard would be had to the life of the mother, and that the State would guarantee both that supreme right and the right to life of the unborn at the same time?

[570] Why was that not done? Why was that kind of wording not used? Is it because medical science is making such tremendous progress nowadays that medical circumstances are likely to change over the next decade or longer in this country and that the type of medical intervention now in certain cases of pregnancies, which is acknowledged by the Catholic church and acknowledged by the 1861 Act may be superceded by medical science and that they may go further and be able to prove that that kind of termination of the unborn life may not be necessary? That is probably why the wording was not as definitive as what I suggested. That is probably why the previous Minister, Deputy Woods, admitted to the Houses of the Oireachtas, that the wording of necessity had to be ambiguous. I accept his reasoning on that but as a legislator I must divorce myself from an elector when I am talking about trying to define what I consider is the correct wording to put before somebody. I cannot accept that it must be ambiguous or in fact that it can lead to different interpretations by people in different circumstances—religiously speaking, from the point of view of different churches and, medically speaking, from the point of view of different obstetricians. We have listened to them all. I have had submissions from the various parties and not one of them were agreed on any particular facet of this wording or of what it would mean or how it would be interpreted. It will be only when it is either carried in a referendum or rejected that we will know what are the full consequences of what we are doing in the Houses of the Oireachtas by way of this piece of legislation before us. The words are unclear and ambiguous. they talk about equal rights for the mother and the unborn. In circumstances which are parallel, where in fact a medical decision has been made which I have already outlined is acceptable presently, you cannot have equal rights. If you are to save the mother's life in certain medical circumstances, whether it be by way of treatment of cancer of the womb or in respect of a pregnancy in the fallopian tube, you cannot give an equal right to the unborn and to the mother in such circumstances.

[571] Regarding the words “where practicable”, any pregnant woman, in my humble opinion—and I am not a lawyer—could say that it was not practicable, because of the pregnancy being unwanted, for her to carry the baby to its full term. That is the tragedy that this society of ours seems to tolerate, the wanton destruction of children that could be born properly if society could accept that. This is the tragedy that women are forced into by the attitudes of society. They are forced to go to Britain where it is legal for them to terminate pregnancies. All those involved in the debate concerning this amendment—the anti-amendment campaign committee, and I do not recognise some of their tactics, the pro-life amendment campaign people, the lawyers, the doctors and the bishops—have at least one common ground and that is that it will make no change in the numbers of Irish women seeking abortions outside the jurisdiction. If that is the case, I question the mad rush to try to put through wording to people that could still be possibly improved to ensure that there is not ambiguity. If there were abortions or if some women proposed to challenge the 1861 Act, I would accept that there was an urgency about this amendment.

If I accepted that there was a need for a pro-life amendment initially—and I want to be absolutely specific in that I felt that if there was any danger in the future we should be looking at the area of changing—that does not say that to overcome that problem we should succumb to the pressures to which each of us has been subjected both by the pro-life people and the anti-amendment people. Some of the tactics on both sides leave a lot to be desired if we as legislators are to divorce ourselves from pressures like that and try to make a valued contribution, whether in the Dáil or in the Seanad, to ensuring that, if a wording goes to the people, that wording should leave absolutely no area for misunderstanding afterwards in the courts. I say that as a parent of children who are females and who will be faced in due course with the problems of life and marriage and family life. I hope that anything I can do will protect not alone [572] those but all other people's children who will be faced with problems in the future where definitive action will have to be taken in their interest.

It was interesting to hear Senator Robinson putting on the record of this House the attitudes of all the people involved in the debate, whether for or against the amendment. Our party have been allowed a free vote on whether we are for or against it, or against the whole principle of holding a referendum at all. That was a sensible thing to do as a political party who have a policy against abortion and who really want to sit down and tease out all the problems that obviously this unfortunate campaign has now raised. It is now almost socially acceptable in homes where the word ‘abortion’ was never mentioned to talk freely about abortion and what is worst of all, to talk about the availability of it in other countries. In other words, we are almost buying the tickets and directing the people who are with child to the boats. We have set it up. This is the most unfortunate outcome of this whole debate. People tend to tolerate this problem.

I am extremely disappointed that the best brains in this country, probably because they were subjected to so much pressures about time, whether it was 31 March or otherwise, failed to come up with an acceptable form of wording. That failure was the reason for the attitude I adopted to this, many months ago and before perhaps even Fine Gael thought of amending the original wording that they all had accepted as being reasonable. Before then, I had stated to my own parliamentary party that, unless something changed in the meantime I certainly would be against the actual wording proposed at that time. I am satisfied that I have taken the right decision. This House is fortunate in that it has at least had the opportunity before making the final decision of having the opinion of people outside the Oireachtas, whether they be any of the Churches or the Director of Public Prosecutions or, indeed, the Attorney General. We must decide whether to accept the words before us or to reject them and put them back into another area, possibly resulting, as Senator [573] Robinson has said, in an all-party committee sitting down reasonably and looking at this matter without being rushed, that is, if we accept the principle, and I do accept it. We could then, if it was considered proper to do so, put the issue to the people by way of a referendum and when there would be complete freedom. All the political leaders have now said that they are not going to actively campaign on this issue as political parties. We are now allowing this important debate, which is finally in our laps to make a decision on, on to a platform where people, who from the literature they have submitted to us already, have not genuinely looked at the problems that could arise as a result of the amendment proposal being accepted. Our request must be seen as being reasonable. Is it not amazing that within this group of Senators in the Labour Party we have people who are totally opposed to the amendment, totally opposed to abortion but also totally opposed to this wording? They cover a wide range of people with all sorts of different views on different subjects but on this wording the consensus was that it is unsafe, ambiguous and certainly unclear.

If the people are to give a yes or no decision on this the least we can do for them is to define what the words mean. What does the word “unborn” mean and what stage is it, is it at the time of conception or of implantation in the womb, or is the pregnancy in the fallopian tube not a pregnancy? If it is, why does the present Act allow its removal in the interest of saving the life of the mother? There are so many questions to be asked and answered. I have listened to every word that has been uttered by Senator Robinson. She has given a reasonable and dispassionate view on the problems from the legal viewpoint. It is when we are finished with this and the people in the country have given their decision that the legal people will have a field day on what these words mean. That would not concern me unduly but it could put at risk the lives of unborn children or the lives of mothers. If there is a risk to life involved, whether it be the life of the unborn child or of the mother, the words [574] are not definitive enough. I make a special appeal that people would overcome any problems they may have had in their parliamentary party about whether the wording should be anti-abortion or pro-life. Each can be complementary to the other. It is very important that we spell out the dangers that we as legislators see.

If the wording is defeated in a referendum what will happen in relation to the 1861 Act? People will be immediately encouraged to go further than they have ever gone in the past on this subject simply because the Act has never been taken on. It has been deadwood, but it is now suddenly reactivated. If the amendment is defeated people could have views on that. If the amendment is carried might lives be lost as a result? As an ordinary representative from a rural part of the country I am extremely concerned about the ambiguity in this wording. I listened intently to the Minister for Justice when he first announced his reservations. The way in which he introduced the amendment is indicative of how he treats this whole wording. He just laid it before us. I could not expect him, in view of what he said, to do anything else with it. He seemed to hope that the Seanad would see reason and would go along with the way this amendment recommends, that is, that we would send it back either for all-party consideration or that we would send it back for the Dáil to make the final decision if they so wish, that it could be changed.

That is my contribution. I feel it is genuine and valid. I am totally opposed to abortion, totally opposed to this wording and I consider that I have a duty as a legislator to express that concern in an ordinary way and not in a legal or medical way. Having regard to the views expressed during the debate in the Dáil I am now more unhappy than ever about the amendment. I had accepted and welcomed it originally as I thought there was a necessity at some stage for it, but we should not rush into an incorrect wording. I value the well-documented contribution of Senator Robinson. She has been very fair in her contribution. Throughout this campaign she has been very fair while expressing her views fearlessly. [575] It is important that people who will be making a judgment afterwards hear all sides of the story because, finally, the decision on whether one rejects or accepts this will be for the people of Ireland. It is with us that the responsibility lies of ensuring that the wording is as good as possible and to remove any ambiguity from the legislation.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  In the course of a well-documented speech against the introduction of this Bill Senator Robinson is to be congratulated in that she put the case very well for not introducing this amendment to the people of Ireland. Paradoxically, the Minister did less than justice to this House or to the legislation in his introductory speech. I suggest that never in the history of this House have fewer words been spoken in the introduction by a Minister of a Bill of his own.

Senator Robinson made much in her opening remarks about the role of the Seanad and her feeling that the Seanad was being misused on this occasion by virtue of the fact that the Taoiseach said he wanted this Bill through this House as fast as possible so that it could be put to the people. I fully agree that the role of this House needs to be examined. From outside and inside we have heard many people suggest that this establishment be abolished. There may be good and practical reasons for doing so, but I have not yet felt that this establishment should be abolished simply because the press seem to want it abolished, or that certain Members seem to want it abolished. However, having regard to the misuse of the House by various people in the past, there might be good reasons for its abolition.

The Bill should be put to the people at this stage. We have been informed that the Fine Gael Party are abstaining on the Bill and that the Labour Party are voting against it. We are not sure about the intention of the Independents. At this stage the situation regarding the outcome of today's and tomorrow's considerations is not at all clear.

Although there is sometimes ambiguity in Bills brought before Parliament, [576] there is not much ambiguity in the Bill before us. It proposes to provide that the State safeguards the right to life of the unborn and, with due regard to the equal right to life of the mother, to guarantee in its laws to protect that right and as far as is practicable by its laws to defend and vindicate that right.

The Labour Party Members continuously say that they are against abortion. Is this amendment being put down by the Labour Party an acknowledgment of the right to life of the unborn or is it being put down, as the Socialist International would suggest, on the basis that everyone has the right to abortion on demand. I presume that Members of the Labour Party who are members of the Socialist International——

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  The reference to the Socialist International should be given. To which document is the Senator referring?

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  Is the Senator a member of the Socialist International?

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  When reference is made to the Socialist International, which publishes proceedings, surely we are in order to request that it be documented so that the record can carry it.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  I am sure Senator Higgins has in his own records any material relating to the Socialist International to which he may wish to refer.

Mr. Ferris: Information on Michael Ferris  Zoom on Michael Ferris  That is why he asked for the reference.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  There is no reference to my knowledge to what the Senator is referring in any of the proceedings of the Socialist International of which the party of which I am chairman is a full member.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  To the Senator's knowledge, that is.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  Yes. I do not claim the certainty of it.

[577]Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  Senator Lanigan raised the matter. What is his knowledge of it?

Acting Chairman (Professor Hillery): Information on Brian J. Hillery  Zoom on Brian J. Hillery  Order.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  The Senator should provide the proof.

Mr. Lanigan: Information on Mick Lanigan  Zoom on Mick Lanigan  What we are speaking about here is the fact that we have a statement before us which is being proposed by the Government and which is being opposed by the Labour Party. If the House agrees, we might save ourselves a lot of time by putting the motion as proposed by the Minister at this stage.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  The position as outlined by some of the Senators with regard to the voting intentions of our party will be made clear in due course. What I have to say on the matter is purely my own opinion and I accept full responsibility for the views which I am about to express. My own position on abortion was the subject of a portion of a political pamphlet which in my innocence I had published in 1977 prior to the election held in that year. It is entitled One Man's View. There are free copies available for my friends. I charge my enemies a pound apiece for them. The references to abortion within that pamphlet represent my opinion on that topic. My opinions have not changed in the intervening period.

In common with many Members of the House I have devoted a considerable time to considering what my attitude should be towards this Bill and to the proposals in general. We are dealing with a complex matter which, as has been suggested in the House today, is full of legal technicalities, much of which I intend to leave until Committee Stage when we will have a further opportunity of considering it, if the Bill reaches Committee Stage. We are examining the principles of the Bill. In common with most people I am pulled in many directions by reason particularly of my views which are totally against abortion but many people are somewhat compromised by legislation [578] of this type. We should try to look at the legislation in a far wider context than has been the case so far. We should try to set the scene of this legislation not against a national context but against an international context.

Mrs. Robinson: Information on Mary Robinson  Zoom on Mary Robinson  An all-Ireland context.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  No, against an international context. In the United States of America there is a movement, a loose movement like the women's movement and movements of that nature. It is not just one organisation. It is a movement which goes under the heading of The Moral Majority. Basically it has many objectives. They are generally objectives of a conservative nature. It has a large fringe element like a lot of these organisations have. Broadly speaking the movement seeks to turn the United States away from the effects of the liberal laws, particularly liberal federal laws, and to restore the United States to more traditional values. The supporters of The Moral Majority are, broadly speaking, against abortion. They are against either all divorce or against too-easy divorce. They are in favour of a traditionally structured family life, the mother at home and so on. They are against “gay” rights. That would be a rather typical position. They are in favour of a strong nuclear policy for the United States. They are normally very strongly in favour of small business and also of other general conservative social and economic policies. That is their general philosophy.

In so far as I would share some of their views, particularly on conservative economic policy, one might expect that I would be a supporter of that group if I happened to live in the United States or that at least I would be a sympathiser. On the contrary, I am repelled by the movement and would not support it in any way. Even though many of its campaigns relate to issues with which I could find some agreement, many of their other objectives, including many of those I have mentioned, I would disagree with totally. Fundamentally their tactics are repugnant and they demonstrate a philosophy with which I could not agree [579] no matter how much I might agree with their individual objectives. In general, they badger public representatives. I notice in that regard that this was referred to in the other House by Deputy Mac Giolla. They organise petitions or political boycotts, with an intensity which is objectionable. They are remarkable for their intolerance of those with whom they do not agree. In general their approach to public life smacks too much of what would be termed McCarthyism. That is the general movement in the United States of America.

Unfortunately, the movement to amend the Constitution, to prohibit the introduction of abortion in Ireland, has great similarities with The Moral Majority movement in the United States. Starting with what I believe to be a reasonable position — that they are against abortion and believe that it is necessary that the constitutional rights of the unborn should be protected — they have mounted a campaign which, as far as I am concerned, is unprecedented in its intensity and its crudity.

Politicians of all political parties have been hijacked as also have been the Roman Catholic Hierarchy. The reason is that they have been confronted with an organisation using tactics of a type which had not been seen previously in Ireland. The request of this organisation prior to the 1981 election for a commitment from the political parties was, by and large, a reasonable one. It was responded to positively. Experience might teach us that a less positive or quick response might have been wiser. In so far as the request which they were making was reasonable the response itself was reasonable, if rather hasty. However, the individual pressure applied to candidates during the course of the 1981 election, during the course of which election I acted as Fine Gael Director of Elections and was therefore in a particularly strong position to understand the pressure being applied to individual candidates, was the beginning of the deterioration of this campaign. I believe that complex questions such as the insertion of a new clause in the Constitution does not yield itself to [580] a yes or no answer, this I believe to be the beginning of the deterioration in the moral righteousness of this campaign.

Sitting suspended at 6 p.m. and resumed at 7 p.m.

Mr. O'Leary: Information on Sean A OLeary  Zoom on Sean A OLeary  I have dealt with the objectionable features of the similarity between the movement here and the Moral Majority in the US and I should like to continue by saying that some of the literature produced by the pro-life movement was objectionable in the extreme. The booklet which each Member of the Oireachtas received — it can be identified if I say it dealt with the subject of “The Red Tide”— is in my belief unnecessarily crude and populist and sought to persuade through shock. In addition, to reduce the argument against abortion to the level only of the waste of human life and blood is to miss an essential element of the reason why, for Christians, abortion is wrong.

The main overwhelming argument against abortion for the Christian is because it damages the life of the community, the living, and reduces the quality of that life. If we believe in life everlasting, as I do, the real cancer of abortion lies in its capacity to accelerate a process of moral degeneration within the community. The real sufferers in a Christian sense which arise out of the process of abortion are the living because by this unwholesome act they are reduced as human beings. This important consideration has not even begun to be tackled by the publicity I have mentioned.

In addition to that publicity there was also a very crude piece of publicity by the responsible society which described itself as a founder member of the pro-life amendment campaign and which had as its title, “Two Amendments Weighed” and which seeks to link the amendment proposed by the party which I have the honour to represent with support for abortion and it makes that link in a most crude and distasteful fashion. The nature of the campaign can, however, be seen more clearly in the way it has treated two groups of people, first, those who [581] opposed the views of the pro-life movement and, secondly, those whom the pro-life movement decided it was in their best interest to portray as opposing their point of view. In the first group they have unremittingly waged a campaign against a larger number of named individuals. For example, they have campaigned incessantly against the Government Press Secretary and ascribed to that individual motives which were not his motives and also ascribed, more seriously, to him a power or influence which he does not possess. They have also portrayed the Attorney General as pro-abortion simply because he gave his honest view that the words of the Bill before us might not achieve their stated objective.

One does not have to agree with the legal analysis of the Attorney General, the consideration of which I will leave to Committee Stage, to react with horror to the misrepresentation and calumny to which he has been subjected. Knowing that the Fine Gael Party have traditionally permitted free votes in matters of this nature, constant and unremitting pressure has been applied by the pro-life movement to those Fine Gael Deputies who they felt did not agree with their views.

The type of campaign reported against many Deputies, including Deputy Monica Barnes, is an example of their methods. It is inexcusable in my opinion and goes far beyond acceptable political lobbying. This type of political bullying — I could not describe it as anything else — has culminated in what I could only describe as a marauding horde of reactionary rednecks who descended on Leinster House on the day Dáil Éireann resumed after Easter.

I invite Members of the House, and the public, to consider and reflect on when was the last occasion similar behaviour was observed within the precincts of Leinster House. Above all, and I really mean above all, the manner in which the Taoiseach has been portrayed by these people as being soft on abortion is evidence of the moral decadence of that movement. If I, who am against abortion — not only am I against abortion but in favour of a constitutional amendment [582]— am disgusted by their tactics how much more disgusted must be the man, or woman, who is unthinking on this subject because, unlike me, he or she is not paid to think on it or, indeed, how much more disgusted must be those who are ambivalent on the subject? It is my belief, and it gives me no pleasure to say it, that these people have brought the horror of abortion nearer to this country by many years. What people do not realise is that no constitutional amendment, no matter what we write into the Constitution, will prevent the introduction of abortion if that is what the people want. If the Oireachtas can be threatened and bullied into submission on this occasion so can a future Oireachtas be threatened and bullied into submission either to abolish the legal sanctions which relate to the crime of abortion or to allow that law to fall into disrepute by lack of use.

It should be also said, and it can fairly be said, that there are within the anti-amendment campaign a certain number of people who are in favour of the introduction of abortion. That is a position that they are entitled to hold and in so far as some of them are non-believers it is an honourable position for them to hold. What is not honourable is to hide behind the vast majority of the members of that anti-amendment movement who are against abortion but are also against the amendment. The unreality of this campaign has been highlighted and accentuated by the lack of honesty of those in our society who really believe in abortion in saying so clearly and distinctly.

One line of argument concerning this referendum has been false and also misleading. I must take issue with Senator Robinson on this point. The argument that suggests that the whole concept of an amendment is sectarian is a false argument. It is reasonable to say that some confusion has arisen with regard to the position of the Anglican community with regard to this amendment. I am indebted to Senator Robinson for the clear statements she was able to put on the record of the House in this regard but it is fair to say that they are not the only statements that were made and they do not give a [583] complete picture. The Anglican community, and this is not a criticism of it, has largely abandoned its role as a teaching Church in moral matters. The individual wishes of the members of that community play a significantly greater part than in other Churches. One of the consequences of this is that the machinery for the ascertainment of Protestant views no longer exists and this has given rise to special difficulties in this regard. For that reason I have some considerable sympathy with the former Taoiseach when he maintains that he received Protestant approval for his work.

Returning to this question of sectarianism, the whole concept of Church approval — if I could be remembered for nothing else in this Seanad but for what I am about to say I would be happy — for the text of a civil constitution is wrong. Those who raise the charge of sectarianism would be rightly horrified if they learned that the present form of words was drafted by the Roman Catholic Bishops. I am not suggesting that that is so but they would be rightly horrified if they found that it was the case. They would rightly maintain that this would be an unwarranted intrusion by the Roman Catholic Bishops into a civil matter recognising, as I believe the Members of this House would, the difference between consultation and the imposition of one's point of view. It is important that we should recognise and remember that difference. It is right that the people to whom I am referring should be consulted but, ultimately, it is wrong that there should be any Church approval for the text of a civilian constitution.

How then could the people who would be horrified if they heard that the present words were drafted by the Roman Catholic Bishops speak of a particular wording as being sectarian only because it is unacceptable to Protestant opinion? The granting of a veto to any religious group, whether they be Catholic or Protestant, is not acceptable to me. As legislators we must work out our own civil law without giving any religious group the right to draft that law or veto it. This is a secular matter which must be decided by each [584] participant in the process, both the legislator and, in this case, the voter taking into account the religious and moral backgrounds of the individual in question and the religious and moral backgrounds of the country at large, but ultimately our decision must be based on our interpretation of the common good. If our decision is genuinely arrived at on the basis of the common good I say it cannot be sectarian even though it may agree with the clear teaching of one Church and disagree with the teaching of other particular Church or Churches.

If, as some people imply by their arguments relating to this case, Churches have a right to veto any legislation, or any constitutional legislation, then what change can ever take place here with regard to the law on divorce because one Church will veto that law? Those who are playing the sectarian card, and I believe it is being played and abused far more than it should, should be careful not to give hostages to fortune in this regard. If the Protestant Churches have the right to veto the concept of an amendment relating to abortion the Catholic Church would have the right to veto an amendment to change the law relating to divorce. This I do not believe in. This is a civil matter on which no Church should have the right to dictate to us the legislators. That is the single most important thing which we as legislators should learn.

One important thing which has largely been ignored by the media and in the debate in general — it was briefly referred to by Senator Robinson today — is the existence in our country of a large number of non-believers. Nobody has sought to represent their viewpoint. It is fair to say that a lot of the viewpoint which hid behind the argument of sectarianism was really an argument which should more properly have been based upon the rights of non-believers. The contribution of those who do not believe in any particular religion to a debate in our society should be welcomed. I regret that it has been noticeably absent in this debate.

The anti-amendment group — I am extremely critical of them just as I have been of the other group — have failed to [585] face fairly the questions that have been posed concerning the extension of abortion. It is true to say that abortions are carried out in Ireland. They are carried out according to well-established criteria. Those who favour the extension of abortion have been reluctant to spell out the exact circumstances in which they favour that extension. I listened with interest to the quotation by Senator Robinson from the circular which we all received from Dean Griffin. That made some attempt to extend the categories to which abortion would apply but I do not think — it could not be expected from a man who is basically a churchman rather than a lawyer — it dealt with the matter fully or fairly enough. If Dean Griffin was seeking to represent a viewpoint it was a pity that the points he made were not taken up by a more authoritative source.

Where then does this leave me? I believe in a constitutional amendment on this topic. It is healthy that there should be one. The rights of the unborn are sufficiently uncertain as to require an amendment, but where does the present position leave me in view of the tone and content of the debate so far? I believe — this is why I have not concentrated on it on Second Stage — that irrespective of the merits of the present proposal to pass it will lead to more pressure in this area of legislation by those who organised this campaign and/or the people who share their fundamentalist view of religion. Therein lies a very real danger. A victory in this case would destroy the role of the legislator and be a very unhealthy precedent for democracy here. On the other hand, to defeat the proposal would no doubt be portrayed as a vote in favour of abortion. The funny thing is that those who would portray it like that are not those who are suggesting that at present, that is the pro-amendment campaign, but I believe it would be that section of the anti-amendment campaign, be it a small section, who are in favour of the extension of abortion facilities. Neither of these results, the defeat of the proposal or its victory, would be in the best interests of the country. By far the best approach would be a withdrawal of the Bill, not just referring it back to the Dáil [586] and taking the decision out of our hands and letting 90 days elapse and that would be the end of our involvement, but a withdrawal of the Bill by all-party agreement, together with the establishment of a commission with broad terms of reference to produce, after an appropriate length of time — that is important — a draft amendment for discussion by all the political parties and the general public. Then, after a further period of calm deliberation, a Bill could be presented — if it could be an all-party Bill or a cross-party Bill it would be better — to the people, a Bill which would express the majority view of the Members of Dáil Éireann and Seanad Éireann, freely expressed in a free vote of all the political parties represented in each House.

Mr. Hanafin: Information on Des Hanafin  Zoom on Des Hanafin  Over the past couple of decades the general judicial trend throughout most of the world has been against giving legal recognition to the right to life of the unborn. In Ireland we are, perhaps, most familiar with the constitutional developments on these lines in the United States, but throughout much of Europe a similar trend is apparent. Moreover, international conventions for the protection of human rights and freedoms increasingly are being interpreted in a manner that gives little recognition to the right to life of the unborn.

Our law does not operate in a complete cultural vacuum. To some extent it is influenced by developments elsewhere and in relation to the unborn these developments are almost uniformly unfavourable. The rationale behind the proposal to amend the Constitution in this matter is, therefore, simply the following. We who have put forward the amendment that is now the Dáil amendment want to put into the Constitution the right to life of the unborn child so that any consideration of introducing abortion here in the future would have to involve putting the matter before the people.

Simply what we are saying is that, since the question involved is so fundamental and the consequences of travelling even a short distance along the abortion road are so irreversible, it is only prudent to include the right to life of the unborn along with those other constitutionally [587] protected rights which may only be altered by direct consent of the people. This implies no mistrust whatsoever of the courts or of the Legislature. The courts are at present without any specific guidance from the Constitution in relation to the rights of the unborn. The position is therefore uncertain.

In the absence of an amendment one can only hope that in a future case the Supreme Court will read into the Constitution a right to life on the part of the unborn, which the Constitution as it stands most certainly does not explicitly contain. Should we leave the right to life of the unborn resting on an uncertainty of that kind? Clearly the answer is no. The adoption of the amendment which the Dáil has presented before this House would give the courts that clear guidance which is not now available to them.

In regard to the Legislature, the proposal does not involve any suggestion that we in the Oireachtas are by any means straining at a leash to legalise abortion or even likely to do so in the foreseeable future. At the same time Deputies and Senators are not elected on one issue only. They stand before the electorate on a wide variety of issues. Issues can come before them which never arose in the course of any previous election campaign. Recent history has shown only too clearly how it is possible for individuals and small groups to exercise disproportionate influence. Since our system allows for the direct consultation of the people by way of referendum, then it seems reasonable that on this issue we should leave the final decision to the people.

It is also a fact of life that most countries within the jurisdiction of the European Court now provide for varying degrees of legal abortion. It is probable that we will at some time be faced with an adverse decision from the European Court which will have considerable persuasive force on this country. There is no doubt whatsoever that, if we were to have a constitutionally established right to life for the unborn, our position in resisting such pressure to change our law would be greatly strengthened. In this regard it is [588] highly significant that one of the lawyers most prominently associated with the campaign against this amendment as presented has been quoted in the press as saying in favour of the second form of wording which was rejected by the Dáil that it would have had the merit of keeping us out of trouble with Europe. In other words, the form of wording which was rejected would have meant that our Constitution would have presented no obstacle to the adverse decision on the matter of abortion that would inevitably be handed down from the European Court.

Let us be under no illusion that we are talking about a matter of human rights. The fact that the human right to life of the unborn is so widely disregarded and trampled on throughout much of the world today makes it no less of a human right. There seems to be an intrinsic merit in our Constitution bearing witness to the right which is so widely assailed and by doing so ensuring that no court or parliament, at home or abroad, which we have to take into account can interfere with that right without the direct consent of the Irish people. Let it be clearly said, however, that the adoption of the amendment by this House and by the people will impose the most serious obligations on all of us, and on Members of the Oireachtas in particular. It will oblige us to work for the development of that fully caring society in which there will be an easing of those pressures which now cause some women to see in abortion a solution to their difficulties. It will oblige us to get rid of our attitude towards making judgments and work to rid families and local communities of such attitudes which so often in the past have caused people to see abortion as the only way out of their distress.

All can share blame for such attitudes in the past. It will oblige us as legislators to see that the rights of mothers and their children are strengthened and maintained and that adequate supports, including financial supports, will be available in the community to help those with unplanned and unwanted pregnancies. It will oblige us to ensure that the agencies already so active and [589] effective in this field will be enabled to do their essential work.

The amendment is not being brought forward as a substitute for all those other things which must be done in our society. Of course, many other things have to be done in our society. It addresses itself only to the narrow legal problem of the absence of the explicit constitutional protection of the unborn. The debate on the amendment and its passage by the people will help to focus attention on all those obligations which as individuals and as a community we must face up to.

I listened to as much as I could of the debate in this House and the other House. I studied both amendments that were put before the other House. I sincerely believe that there was a certain element of bad judgment in bringing forward the second form of wording. I think they were ill-advised and inept in so doing. I do not believe that the Fine Gael Party, who brought forward the second form of wording, were in any way whatsoever pro-abortion. I would contradict anyone who would suggest that. It was bad judgment to bring forward the second form of wording but I would like to put it on record that I do not believe that any member of the Fine Gael Party or of other parties who support it are necessarily pro-abortionists. It would be regrettable if it were ever suggested that was so.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  It is appropriate that in today's Irish Press there is the text of a letter from Michael Yeats, a former Cathaoirleach of this House, objecting to abuse of some lines of his father's poem “The Second Coming” being used in a pamphlet that claimed to be pro-life. In his letter to The Irish Press, Michael Yates, former Cathaoirleach of the Seanad, former vice-president of the European Parliament, recommended the people who had published, without his permission as executor of his father's literary estate, sections of his father's poem “The Second Coming”, another section of a speech that W. B. Yeats never delivered in Seanad Éireann but which is contained in Donald Pearse's “The Seanad [590] Speeches of W. B. Yeats”. The text of this speech was as follows:

I should recommend the following to them for their next effort:

“This country has declared through every vehicle of expression known to it that it desires union with the North of Ireland, even that it will never properly be a nation until that union has been achieved, and it knows that it cannot bring about that union by force. It must convince the Ulster Protestants that if they join themselves to us they will not suffer injustice. They can be won, not now, but in a generation, but they cannot be won if you insist that the Catholic conscience alone must dominate the public life of Ireland.”

It is now almost sixty years since that was written, and it is tragic that there should still in the year 1983 be need to repeat this obvious truth.

In a telling phrase on the same page, Mrs. Josephine Molloy, Claremorris, County Mayo, Secretary of the Family Life Research Centre, said that they had taken the lines from an American pro-life magazine:

It never occurred to us that we should seek permission from anybody. These lines have appeared in several publications since 1980 and there was never any mention of copyright.

There is an illustrative piece of information in the phrase that they were borrowing from an American magazine. More than Yeats' lines were borrowed from an American magazine. In a thoughtful speech Senator O'Leary has referred to the lurid publicity material that has been dragged into our schools and shown to sensitive people in their teenage years irrespective of its consequences. People have pushed their way into assemblies that used to be thoughtful and deliberative. They have demanded time in the churches. They have demanded the right to go into schools. Good luck to anyone who wants an audience.

As Senator O'Leary said, the material [591] was lurid, misleading and above all else it was deeply injurious to many of the people to whom it was shown. I remember raising this matter some time ago when Dr. Marx was travelling around the country with foetuses in jars. I pointed out at that stage that there was clear psychological evidence that exposure to material like this could leave young women irreparably psychologically damaged in relation to their future sexual relations. I was told that the end justifies the means, that one could not bother about trivial consequences like that.

The entire pro-life campaign since its commencement has been suffused with this type of uncaring attitude about the consequences of the campaign, uncaring about the effects of their methods and techniques on the audiences they sought; uncaring about the dreadful lies and deceits that they put out aided, unfortunately, by many members of the two major parties about individuals who opposed their techniques.

It is ten years ago since I came into this House, from 1973 to 1977. Senator Hanafin suggests — and I agree with him — that this debate on the amendment will perhaps move us to accept responsibilities; to be concerned, compassionate and so on. In 1973 the same people who are in the pro-life movement were writing hate mail to Senator Robinson who sits alongside me in the House today. In 1971 Senator Hanafin's party would not let a family planning Bill get into print. Between 1973 and 1977 they were to defeat two more attempts to establish minimal family planning in this country. In 1975 the groups who stood outside the Dáil on the campaign this year stood outside and picketed the Dáil when Senator Robinson, Senator John Horgan and I proposed a Private Members' Bill to abolish the status of illegitimacy.

I am sorry that I have to say to Senator Hanafin that there is no evidence in those ten years that our hypocrisy is any less or that there is an increase in concern. We still have a stigma on the illegitimate child. We still have done nothing for the single parent that will give him or her security. We have done very little in relation [592] to education towards responsibility in sexual matters between men and women. We have done very little in relation to the provision of adequate advice and facilities for those who believe in planned parenthood. We have — to put it in a short phrase — continued our deeply prejudiced, ignorant anti-woman attitudes in this country. That was the position in 1973 and so it remains in 1983.

This amendment is interesting. Other speakers have spoken about the origin of it. I want to be very practical in what I have to say. First, I want to ask every legislator here where it came from? Where did this request for a referendum come from? Why in 1983? Are abortion clinics opening all over Ireland? We know we have 200,000 people unemployed. We know that we have problems in our economy. We are not discussing these in May 1983. All are taking their phonetics from Dr. Julia Vaughan on television and calling it “unborn”.

This request for a referendum was presented to the leaders of the parties by a group of people who by and large are not representative of care, concern or compassion in this country. I have carefully examined their organisations and membership. They were not with me when we were speaking about, for example, the rights of women to adequate housing. I have never had a letter from any of these people who draw over £50,000 a year about adoption. I have not had a letter from them on the issue of the single mother. I cannot recall receiving a single representation from these people on the many occasions when I discussed the welfare of children. In fact I can go further. I have had occasion to write to some of these people about the poor conditions that existed in the wards of hospitals under their charge, the conditions which existed for women to give birth. This is not a group of people who for a decade had unravelled the needs of women and children and who had arrived at this point. It is a group of people who are influenced by what is happening in Britain; who were to go on to pick their publicity material from the United States; who presented themselves in the offices of the leaders of the main parties [593] and having been told in the first instance when they met Deputy Haughey that he would have to give it more thought, the following day they went to Deputy FitzGerald — who has my compassion in a way for what must have been the most appalling political act of misjudgment — who gave them an assurance that they could have an amendment. Later he was to say that this was necessary to avoid putting a card into the hand of the Opposition which would be played during the general election and which, of course, might affect the outcome of the election. On the following day the group came to see Deputy Cluskey who gave them less than a commitment.

I must comment on this as a legislator. For a start, it demeans democracy. If you are a leader of a party you must not give in to pressure groups like this. You must not say to people: “You can have this put into our Constitution” and then you get on with the business of having an election. Look at how the campaign has been conducted. I will turn to some more practical aspects of this in a moment.

All the speeches today were thoughful ones. We are indebted to Senator Mary Robinson for having given us the history of this campaign from the beginning and for teasing out different legal and ethical aspects of it. Every speech has been thoughtful but that has not been the atmosphere that has prevailed in this debate in the country. I stood for election in 1981 and 1982. I have stood in many elections. One of the differences between many members of the pro-life lobby and me is that all my political life I have believed in minority viewpoints. I have been satisfied to accept the decisions of majority and to live in this country holding a minority viewpoint as a socialist but they are not satisfied with that. They are not even satisfied in being a majority.

The atmosphere in my constituency was one which Senator Seán O'Leary described accurately. It was one of bullying intimidation. It was worse than that. Rather like the same mind that lifted the lines of W. B. Yeats' poem without permission, we had tens of thousands of leaflets distributed by anonymous people in Galway West on the last occasion. One [594] gave a printer that was false, CPA in Box 28 AC. You check the GPO and it is the box number of Lloyds Bank. Another group of people called themselves ISPUC instead of SPUC and SPUC disowned the leaflet afterwards. They print the names of candidates who are sound on the abortion question omitting the names of other candidates who, by implication, it is suggested, are unsound on abortion. May I say to Senator Hanafin about the deep sectarianism involved that it was accompanied by the suggestion from members of his own party that I was particularly suspect in this matter because I had my child attending a Protestant school. These are the tactics in one constituency that I know of from personal experience because I was the person involved. I will not bore this House by reconstructing the atmosphere that prevailed in Limerick and elsewhere. So, let us not indulge in some kind of little coy evasion that we are just discovering what we are speaking about for the first time and that we will debate the merits and the demerits of it now. These people went on a witch-hunt against people who they said were enemies of the Irish way of life.

In 1977 CPA distributed leaflets because I was then in favour of family planning. This was the whole attitude and it went on consistently like that. I am accustomed to meeting “nuts” all my life but these people are more than “nuts”. Senator O'Leary has given some of their derivations. They have a parallel with the moral majority in the United States. He did not draw a distinction between a majority in a political system and the attitudes in the United States of the moral majority. The fact that it is a majority in terms of numbers is in its definition but the difference between that and a moral majority is that the moral majority seek to deprive the minority of circumstances in which they can express their opinion. That is exactly the atmosphere that we had in this country.

During this last awful debate TDs, Senators and candidates were subjected to forms of pressure which I consider to be entirely unreasonable. For example, you got a questionnaire and if you did not send it back within seven days your name [595] could be painted as being soft on abortion. When the questionnaire was not answered people wrote to you from different addresses saying they wanted to know your answer on this matter. I am in a curious position. I am branded by these people as being anti-life and yet I have sponsored in the last ten years the only attempt to abolish the status of illegitimacy, to give children in institutions the same rights as children outside and to remove that stigma from them. I have said that every child should be a wanted child by bringing in family planning legislation. I have been involved in relation to changing the adoption laws so that children might be adopted by parents who want them. Suddenly people who have had no record in any caring activity whatsoever have set themselves up as people who not only have the right to represent their point of view but who seek to drive people like me out of public life and who have boasted about it publicly in the newspapers.

I should like to extend a point made by Senator Mary Robinson. Part of her contribution was a description of the amendments we have had to the Constitution so far. There were seven amendments. It is worth reflecting for a moment on the amendments that we have not had. We are being asked to change the Constitution in this Bill and the Labour Party's proposal is more or less that it be stopped in its tracks right now before we do any more harm. We have no amendment that would change our Constitution to give more flexible adoption laws even though we have children in institutions and we have thousands of parents who are anxious to adopt children. We have no suggestion of a constitutional amendment that would change our constitutional sections on private property so that we might have a planning Act and build houses for families and children. We have no constitutional amendment suggested to us that would give us planning powers in relation to financial matters.

We have no constitutional amendments suggested to us that would regard men and women as equal. There is no constitutional amendment suggested to [596] us that our neutrality should be enshrined in the Constitution. No, all these matters are brushed aside. No demand is made for any of these life-enshrining, life-extending matters and instead of that we have this form of words suggested. This makes its own comment on the kind of society we have. More important, it draws our attention to the atmosphere in which we are conducting our politics.

We will hear again and again throughout this debate of a leader of a party who gave a commitment which he saw to his credit later was something that needed to be qualified. We will hear of another leader of a political party who would have given any commitments and who could later find that there was no problem whatsoever, whether the words meant anything or not. I suggest that what we are encountering here is the politics of fear. Small groups of people representing a backward view of society and essentially a 1930 philosophy can create an atmosphere of fear in constituencies in which they will be able to extract from the leaders of parties and from Seanad candidates commitments that are clearly not in the best interests of our population.

An Cathaoirleach: Information on Patrick J. Reynolds  Zoom on Patrick J. Reynolds  I might remind the Senator that we have agreed to adjourn the debate at 8 o'clock.

Mr. M. Higgins: Information on Michael D. Higgins  Zoom on Michael D. Higgins  I have made the point that there are a number of matters in our modern society threatened by war, shortage and deep inequality that we could demand. We have not demanded any of them. We have decided to pursue this amendment. I want to take up the point, which has been denied by Senator O'Leary in an almost convincing way, on whether this amendment is sectarian or not. A form of words that seeks to permit only the exceptions in practice of one denomination in this country is sectarian by definition. It is not a matter of a church holding out a veto on a form of words. It is whether the form of words will only allow exceptions that are acceptable to one denomination. If that is so then the referendum, if you want to avoid the word “sectarian”, is denominational. I will not have much time this evening to [597] develop some of the other points I should like to make. I began this evening by mentioning one of your predecessors in that Chair, Sir, Senator Michael Yeats. There was one point which he did not make about his father's contribution to this House, which was very important. It was made by Senator Robinson. It is that in matters like this we should not move speedily. It is in this House, above the other House, that the views of a minority always should be stated. There is an atmosphere in both Houses this week that this whole business is unseemly and untidy — could we not get rid of it now, let it fly through the Seanad and we will all keep our heads down until the people have voted on it?

I believe that if we create an atmosphere in which TDs and Senators are reluctant to express an opinion on a matter that has been put before the public, we are setting up a process of abnegation of responsibility for which we will not be thanked by future generations. In that respect it is important that as many Senators as possible express an opinion on this amendment, on the definitions of the words involved in it, the background to it, the alternatives to it and how, even at this late stage, it is not too late to turn back from it, when it will be so deeply divisive of our community, so negative about the future and so uncaring of the real needs of our society.

Cuireadh an Díospóireacht ar athló.

Debate adjourned.


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