An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Tuarascáil (Atógáil) agus an Chéim Dheiridh. Eighth Amendment of the Constitution Bill, 1982: Report Stage (Resumed) and Final Stage.
Thursday, 26 May 1983
Seanad Eireann Debate
Mrs. Robinson: Last night I was attempting to assess the significance of the brief intervention made by the Minister for Justice on Report Stage. I am glad to welcome the Minister back in the House for the resumption of the debate. The reason I think it is important to try to assess the significance of the intervention is that the Minister for Justice repeated again what is clearly his grave concern at the inadequacy of the wording of the amendment as it exists. During Committee Stage debate in this House the Minister referred to this question of balancing the rights of the pregnant woman and the foetus, the fertilised ovum or the unborn at whatever stage is being considered, whether it is a possible threat to the pregnant woman and some choice must be made between the woman and the unborn. The passage where the  Minister intervened on Committee Stage on this point is in Volume 100, No. 9, column 955. It is worth referring to that passage because it shows the important issue which the Minister raised then and came back to last night on Report Stage. The Minister said:
On the question of balancing the rights of mother and child, there is the right to life of the citizen in the Constitution and obviously that includes mothers as well as other citizens but, again, if we simply had a statement giving a right to life to the unborn child and did not attempt to allow for current medical practice by some form of subsequent or subsidiary phrase, we would be leaving it open to the courts to balance the existing right of the citizen in the Constitution with the new right which we would be giving to the unborn child. Maybe that would be a way of doing it but we would not be establishing a situation where the Supreme Court would not have a major role. We would be saying we will put a right to life of the unborn child into the Constitution, that a right to life of all citizens exists already and that in cases — as at times in current medical practice — where there appears to be a conflict, it would be up to the courts to decide. I felt I needed to make a comment on those points because while what the Senator says is interesting, for those reasons it does not help the situation, and I would not advise an amendment along those lines should go back to the Dáil. I doubt that it would have the prospect of acceptance.
That was the way in which the Minister raised this issue on Committee Stage. Then last night he came back to it in the unusual situation, almost a role reversal as I was saying last night, when he continues, as indeed I do and those other Members who are still participating in this debate do, to ask the question what the risks to pregnant women will be in a situation where the Constitution confers a constitutional right and does so in the language and in the manner of creating an equality of rights and indicates and  allows on the face of it no preference to either in case of conflict.
I understand from the intervention of the Minister, on Report Stage, that he is concerned to highlight this grave omission, this grave problem with the existing text. Senator O'Leary on Committee Stage also drew attention to this problem. He asked what he called the sponsors of this amendment, the Fianna Fáil Party, to explain why they would not accept the addition of some formulation to the effect that where there was a definite threat to the life of a pregnant woman that medical steps could be taken and any steps taken would not be unlawful, would not be in breach of a constitutional right and would not be contrary to the Constitution and law of the State. This concern for women and for the risks inherent in this amendment, in so far as it may affect pregnant women, has also been expressed publicly by the Taoiseach. He has drawn attention to this and he says he will make a public statement when the Bill has been passed by both Houses and he will warn of the risk in this amendment to the lives of pregnant women.
The Minister of State with responsibility for women's affairs, in a contribution during the debate in this House, said that she believes this wording is dangerous and she will advise that it be rejected if it goes to a referendum. We have very clear and very concerned statements by the highest political authorities in our system on this issue, the Taoiseach, the Minister for Justice and the Minister of State with responsibility for women's affairs warning us that this text is dangerous to the lives of pregnant women. When I went home last night I reflected further on the matter. It occurs to me that there is a kind of analogy, it is like the Government warning on cigarette packets. It says that cigarette smoking is dangerous for your health. Will there be some Government warning on the ballot paper if this goes to a referendum?
This proposal places at risk the lives of certain pregnant women. The mind boggles. Surely it is in the public interest that we take more time to consider this. Let it go back to the other House and there will be a proper debate on the extent and  scope of that risk to pregnant women. Surely it is not a situation, even at this very late stage, where the stance is that of abstaining, because there has been enough talk about this it has to go to the people, it is an uncomfortable political situation, it is the mood that prevails in the Fine Gael Party. It is simply incredible and the deepest insult that I know to women that the Taoiseach, the Minister for Justice and the Minister of State with responsibility for women's affairs would draw attention to the fact that this text is dangerous and poses risks to pregnant women and yet that they would not use every resource of our parliamentary process in order to ensure that further time and consideration was given to the text before it was the one submitted to the people.
On the wording of the text as it stands there is no preference given to pregnant women in a situation where a choice has to be made between the lives in that life threatening situation which occurs. The purpose of this amendment on Report Stage is to give a prior right, which is current medical practice here. That is what the Minister is referring to. In his contribution on Committee Stage the acting leader of the House, Senator O'Leary, invited new thinking. He asked us to come forward with possible alternatives to improve the situation and not simply put forward the amendment which Fine Gael had put forward in the Dáil which had been rejected.
This is the second new thinking on this that has come forward on Report Stage in the House. It is not too late at this stage for the warnings which are given at the highest level by the Taoiseach, the Minister of Justice and the Minister of State with responsibility for women's affairs to be carried through into action, as Senator Bulbulia said. It is part of her philosophy that if she believes in something, if she states it, then her actions follow her words. I thought she said this with great simplicity and great authority in her contribution on Second Stage.
It is not too late to have an influence and to make a constructive contribution in this debate because, as was pointed out yesterday, by Senator Higgins in particular,  the medical profession are broadening and deepening their awareness of the difficulties. There were some members of the medical profession who from the very beginning pointed to the difficulties and dangers in this proposed text. The wheels of every establishment structure in Ireland move slowly. It is only now that some very senior members of the medical profession have been alerted, are becoming aware, are writing letters to the papers and are calling meetings to consider the implications. Many of us might say they should have done it a year ago. They should have woken up. They have the expertise. They know the problems and the practical difficulties. Their contribution would have been more helpful if they had intervened at an earlier stage but that is precisely what I understand the balances in our legislative system to be. The whole purpose of having a second run of legislation right through its five Stages in the Upper House — it having passed through the other House — is so that it can act as a means of public information and education so that those who are in a position to make a contribution in the media or in the public forum because they have some expertise — of course the medical profession have — can do so. There is no rush about this. Nobody has been able to put forward any credible reason why we have to dash into setting a date for a referendum.
In view of the very strong disquiet that must be felt by any reasonable citizen when such authoritative voices point to the risks to life implied in this proposed text there is a very direct responsibility and challenge to us in the Seanad to consider the matter carefully. This was something on which I dwelt at considerable length on Second Stage and I do not intend to dwell on it at great length now. It is not too late, the subject is not a boring one, it is about life-death chances in certain instances and about how we effect the change.
The Minister, in his contribution last night, looked across at the Fianna Fáil benches and asked whether, at this late stage, some explanation could be given as to why the sponsors of the constitutional  amendment will not accept some formulation to clarify and to avoid this risk to the lives of pregnant women. There was an attempt to answer some of those questions on Committee Stage from the Fianna Fáil benches, particularly in the contribution made by Senator Eoin Ryan. I want to refer to the two brief passages in his contribution where he attempted to meet some of these problems. We are now on Report Stage and, in my submission, the problem is still as acute and difficult as it was and no answer has been provided. We are not reassured at all. On the contrary, I am all the more alarmed that somebody who is as senior in the legal profession as Senator Eoin Ryan can brush aside the difficulties that have been raised and repeated in the contribution by the Minister last night. I refer to the contribution by Senator Eoin Ryan, reported in the Seanad Official Report, Volume 100, No. 9, column 990. He dealt first of all with the scope of the concept of the unborn and then afterwards with the balancing of rights. Both passages are relevant to the amendment we are considering. Senator Eoin Ryan said:
Senator O'Leary raised a second aspect of this which, of course, is a much more substantial one, what does “unborn” mean, at what stage would the child have to be to be “unborn” to be covered by this amendment. That is certainly a very important point but it is so complicated that it would be quite impossible to define it in such a way that no doubt would be left. It would be necessary to put some sort of medical dissertation into the Constitution to deal with this matter, to put the pros and cons and to finally come down. Of course, that is clearly quite impracticable. What has to be done is to put in a word and allow the Supreme Court — if the matter ever arises — to interpret that in the light of medical, moral and legal opinion at the time, to have regard to the climate of public opinion. If the point arises as to exactly what stage the foetus is covered by this then they may have to interpret it. There is nothing wrong with allowing that kind  of interpretation to the Supreme Court. That is one of the very useful things the Supreme Court does, to interpret Articles of the Constitution as time goes on, having regard to the climate of public opinion, medical views and developments at a particular time. It is a very proper function for the Supreme Court to define what exactly that means in the light of opinion, legal and other opinion, at a particular time. That is the only way to approach this matter. If we did attempt to put in a medical definition into the Constitution it is quite possible that in a relatively short time further views and opinions would become acceptable which would mean that the definition in the Constitution would no longer be valid.
There are several different ways in which that is a most interesting contribution. First of all, Senator Ryan admits that the text is not clear as to the point at which we are conferring the constitutional right oh the unborn. He says that it may vary from time to time. That is very interesting because, in fact, that could be an indication that if public opinion were in favour of legalised abortion the Supreme Court should interpret the point in time as being a much later one. I have not seen many other interpretations of a similar kind put on this by spokespersons on behalf of Fianna Fáil. I do not know whether this is the authoritative interpretation of the Fianna Fáil group in the Seanad, that the interpretation of the Supreme Court should vary in the light of public opinion. I had thought the whole idea was to stop any possibility of a varying definition in the light of public opinion, that the whole philosophy and approach was to halt any possibility of a development in public opinion along those lines. And yet this is what Senator Eoin Ryan appears to be suggesting and stating clearly in that passage.
One would get the impression from the reference made to the Supreme Court that somehow the Supreme Court would be there in the maternity hospital sitting beside the doctor able to give an answer. Senator Ryan knows as well or for longer  than I how long it takes to get a case to the High Court and then on to the Supreme Court. Even if it is done with the greatest urgency by way of some sort of injunctive relief it is a matter that would certainly take weeks. If it is a normal declaratory action it would take years. Therefore, in this situation where we are pointing to grave risk to the life of pregnant women it is no consolation to the woman on the line or no help to the doctor trying to remain within the law — which, presumably, doctors like every other citizen are required to do — to know that somewhere, sometime somebody might be able to mount a long and complicated case that would go to the Supreme Court.
I thought the whole purpose and thrust of the amendment was to take this out of the realm of the unpredictable Supreme Court. There was a great deal of Supreme Court knocking in the lead up to the urgency and need for this constitutional amendment. In so far as there are some attempts to answer they confirm the wide gaps in our understanding of this amendment. They confirm that the dangers that have been pointed out are not only present but are real in seeking to understand the scope of the present text.
I refer now to the second passage in the contribution by Senator Eoin Ryan where he refers to the problem of balancing between the constitutional rights, the constitutional right which we are proposing to confer on the unborn at some stage in the cycle and the constitutional right to life of the woman as a citizen, the existing constitutional right. In his contribution he referred to the questions posed by Senator Higgins to define what exactly the position would be in various medical situations in which the life of the mother and the life of the child would be in jeopardy. At column 991 he said:
I am going to attempt to give an answer to that. I am not answering it because I have any pretensions to any medical expertise, but I am going to give an answer on the basis that I can at least, like Senator O'Leary, express a legal opinion which, of course, could be wrong. Senator O'Leary said that  he could be wrong. I accept that I could be wrong. I would also like to mention that the Attorney General could be wrong and the Director of Public Prosecutions could be wrong. Legal opinions are merely opinions. In these very complicated medical situations which were brought before us, the position will be, if this amendment is passed, exactly what it is at present. No change will be made in the law by this amendment. This is an amendment of the Constitution. It will not per se make any change in the law. The law which will be applicable to this kind of situation is the law under the 1861 Act which exists at present and which, presumably, will be there in the future until such time as some other law takes its place, and in that case the Constitution will ensure that that new law will be similar, basically, to that which is there at present. So the answer to these complicated questions that are asked about medical situations is that what has been permitted up to now will be permitted in the future. There will be no change. The purpose of this Bill is not to change the law, to do the exact opposite: it is to ensure that the law will not be changed in such a way as to allow abortion in the future.
This amendment will necessarily change the law and the position. It will not affect the criminal law except to confer a constitutional right on an entity, on the unborn. That is a very substantial change. Legally that is a very specific, concrete, important, practical change. We are conferring a constitutional right, we are not sure just exactly when it is going to date in the fertility cycle of reproduction, but we are conferring it. Once a constitutional right has been conferred then, as the amendment itself says, the State must endeavour to defend and vindicate it. It is a right which can be asserted in our courts. Because the fertilised ovum, or the embryos, cannot assert that right, it can be asserted by a  third party on behalf of the addressee of the right, the beneficiary of the right. There is by necessary consequence of having a written Constitution, of having a whole jurisprudence on the protection of rights under the Constitution, a change from the pre-existing position. The conferring of a constitutional right on the unborn may well change the interpretation of the 1861 Act. It may well be that there could be a challenge to the 1861 Act on the grounds that it was in some way incompatible with the constitutional amendment so that the law is changed significantly in a number of ways but in particular by the fact that we create beneficiaries of constitutional rights.
The Supreme Court has stated quite clearly in, for example, the case Byrne v. Ireland in 1972 — when Kathleen Byrne brought an action against the people of Ireland and succeeded in recovering damages for injury caused to her — that for every constitutional right there is a remedy. There is the possibility of asserting that right and the courts will be open to the assertion of that right. We are not doing something abstract and illegal by stating that we are going to confer a constitutional right to life on an entity. We may be doing something very vague and hard to determine. Nonetheless the legal position is that the entity on whom we have conferred that constitutional right has a constitutional right to life and therefore has the right to have that right asserted in court, has the right to have that right defended and vindicated as far as practicable, and has the right to have that right given equality with the right of the pregnant woman.
Mrs. Robinson: Na mbeo gan breith. That is a very serious situation indeed. As Senator Higgins in his contribution last night made clear, unsatisfactory as the English text is, the Irish text is less satisfactory, is less clear and more open to posing a very real and serious threat to the life of a pregnant woman.
I am back to the problem on which I reflected overnight and came up with this analogy of the cigarette packet. We  have a very clear warning on cigarette packets that smoking is dangerous, no equivocation of maybe, smoking is dangerous to health. The only honourable stance for the Minister for Justice would be to seek to ensure that the ballot papers which we will be discussing in the next Bill will carry a Government warning that this amendment is one which will endanger the lives of certain pregnant women. If that message is not got across there is a danger that a very significant number of people who do not like the whole debate about this amendment, who are alarmed and depressed at how divisive it has been, will say they will not vote for this amendment because they do not like, for various levels of reasons, the way in which it has been brought forward, the tactics used and the unnecessary taking up of parliamentary time.
It is necessary to make sure that the message gets across that they should not abstain on this issue, that there is a very specific concrete reason why they should vote against, why all women in Ireland should vote against this measure, because it poses a direct risk to certain pregnant women. Whatever about the distance that male politicians can put between themselves and that reality — I do not suggest for one moment that all male politicians, or the majority of them can distance themselves — it is important for women to stand together on this and realise the very real risk which is one that their attention is being focused on by the Taoiseach, the Minister for Health and the Minister of State with responsibility for women's affairs, that it poses a risk because it does not in its wording specify that in a situation where there is a life-threatening problem, either the life of the mother or the life of the unborn, where the choice must be made between them, there is any preference or guidance on any preference. There is nobody to say in those circumstances that it would be lawful to exercise a choice between the constitutional rights which have been given a status of equality. That is why this one word amendment is, in fact, a significant improvement on that situation. Certainly, I have no objection at all to recognising a constitutional right of the unborn  but I believe it must be one which is not going to pose serious risk to the very life of a pregnant woman which this text poses. That is one of the most serious criticisms of the constitutional amendment.
Getting back to the insult posed to women by the fact that we could have a measure to amend our Constitution which poses risks to the life of certain pregnant women, we are so close to the debate now and have had so much of it, that it is difficult to stand back from it and see the awful reality of how the proposal, and the blackmailing pressures that were brought to bear, have led to this sorry pass. For observers outside the country, people in Northern Ireland, for people who know Ireland well but are viewing it from a certain distance, it must be very difficult to try to understand how any Government, even in present difficulties, could possibly allow a text to go through a House where it could be defeated and delayed, which poses a serious potential threat to pregnant women. I suppose the reality is that it is part of our Irish way of doing things.
Up to two years ago when this movement for a constitutional amendment started we did not concern ourselves once in this House with the reality of the problem on the ground, with the serious social problems, loneliness, guilt, distress, economic pressures, housing pressures and emotional pressures on women. We still are not really concerning ourselves with the front line problems in these areas. It is only another dimension that we are prepared to take a risk in relation to the very life of certain pregnant women. I only draw attention to it because I do not know any other way of expressing my total disgust with the possibility that a political party who have the voting strength to delay and have further discussion on this measure would adopt a stance of abstaining. I have to say that it really does pass comprehension.
Just as I have already expressed the view that this whole debate has been, and will continue to be, very counterproductive. I believe it has in a way that was unthought of a few years ago made the whole discussion of abortion not only  respectable but widespread so that it is much more likely to spring to the front of the mind of any woman or girl who finds herself pregnant and is in difficulty as to how to cope with that pregnancy. It is more likely now that not only will the option of terminating through abortion occur to such a woman or a girl, but that she will know where to go to find a clinic or doctor to terminate the pregnancy.
Once the risks of this constitutional amendment are fully understood by the medical profession, if this amendment is carried, we might also see a possibility that pregnant women would go abroad to have their children. It is possible that pregnant women would say: I am not going to be in a situation where, in a choice, I am at risk as to how the doctor is going to interpret this vague provision. It may be that husbands will say that they would not like their wives to be placed in this situation of serious risk. I repeat, it may well be that it will remain a point of fundamental difference between the interpretation I place on this and the interpretation Senator Eoin Ryan placed on it on Committee Stage and may seek to do on a later stage in the debate this afternoon, that there is no doubt at all in my mind that if we are conferring a constitutional right on an entity, however we define or say how the right becomes real and is conferred on the beneficiary, on that entity, on the unborn, once we confer that right that has changed the position, that itself has changed the law. There is no need for legislation after that. That is a right which the courts must uphold. That is a right which the courts must recognise. That is a right that can be asserted and which will be protected by our courts. It must also be defended and vindicated by our Legislature and by every law abiding citizen in the State. That right has been placed on a footing of equality with the right of the woman.
The value of the Committee and Report Stage debates in the House, and the amendments put down and discussed, must be to publicise as widely as possible the very serious questions that have been raised by Senators, the very serious question  which the Minister posed last night as to why the proposals of this constitutional amendment will not allow that doubt and that worry of the risk to pregnant women to be removed. The message must go forth from this Chamber and, hopefully, will be carried into any constitutional referendum debate that there may be that this is not an abstract issue. The amendment is not only unsatisfactory for all the reasons people had thought but also poses a serious risk to certain pregnant women and, therefore, must be rejected. We can still hope that the people will save us from our politicians and that they at least will have had the time to become alert to all the difficulties, apart from all the political price that we would pay for decades if this amendment becomes part of our law. We know we will pay that price. We will pay that price on the 30th of this month when the Forum comes together for the first time. We will pay it for decades when anybody wishes to put forward progressive social legislation or to open up ideas here. We will wear it around our necks like an albatross but, nevertheless, this debate, and the amendments put down, will have helped to clarify and to focus on the dangers which more and more leaders of opinion, including medical opinion, are drawing attention to. For that alone the time we have taken has been very worthwhile.
I still have some hope, given the reasonable and modest approach of Senator O'Leary, acting leader of the Fine Gael group, on Committee Stage that there may have been a change of mind, a change of heart, a change of attitude. There is no doubt that Senator O'Leary shares with me the worry I have. I gathered that from his contribution on Committee Stage. I hope I am as modest as he and can admit that I too can be wrong. Nevertheless, there is no doubt at all that the conferring of a constitutional right changes the law and changes the responses of the courts and the responses of the medical profession in coping with pregnant women, coping with difficult problems of choosing between the life of the pregnant woman and the life of the unborn. Therefore, at the very least this  constitutional text should carry a Government warning that it is dangerous to certain pregnant women.
Mr. Mullooly: I had not intended to contribute again to this debate. I spoke on Second Stage and I indicated my support for the proposal to amend the Constitution. I stated that I believed that such an amendment was necessary in order to guarantee the right to life of the unborn. I outlined why I felt such an amendment was necessary and I stated I was quite happy with the proposed wording. At the outset I should like to say that nothing I have heard or read since has altered my views in any way. Having listened to or read most of what was said on Committee Stage, and listened to the debate yesterday, I decided to make a brief contribution today. I am not a lawyer nor have I any medical qualification or expertise. I am certainly not a theologian. Furthermore, I know I cannot express myself as articulately as the Senators who have dominated this Stage of the debate. Why then do I feel I should become involved in the discussion again? It is because I want to express, and put on record, my views as a lay person, and as a public representative in relation to two points in the proposed wording which have been raised repeatedly during the debate. Again and again the meaning of the word “unborn” has been questioned. I believe very few words are absolutely precise in their meaning. The meaning of any word is determined by the context in which it is used and by the generally or publicly accepted meaning of the word when it is used in that context. I am satisfied that the meaning of the word “unborn” is not in any way ambiguous in the context of the proposed amendment wording. In fact, its meaning is very clear. It means the new life that exists within the mother during pregnancy. It cannot mean anything else. I am satisfied that it is the ideal word to be used in this context.
Senator Higgins said that the originators of the word were the moral majority in the United States. I am not worried where the word came from as long as it suits the purpose for which it is required and  the context in which it is used. Some Senators made the point that “unborn” is an adjective and should be used to qualify a noun. This would be a very good point to make if we were students writing grammatical notes on the wording for the leaving certificate or some other examination. However, I believe that to use any noun with the word “unborn” would raise more problems than it would solve. For example, it was suggested that to insert “child”, “person” or “human being” after “unborn” would improve the wording or make it more correct or precise. The question could then be raised what would be the position of a mother who was expecting twins, triplets or quads or even Siamese twins. In my view the word “unborn” on its own embraces all new life irrespective of whether that new life is a single foetus or twins or any number of foetuses. There is nobody in this country who is not quite clear on what “unborn” means in the context of the proposed wording.
The second point I want to make is in the connection with the expression or the phrase “the equal right to life of the mother” in the wording. To refer to the equal right to life of the mother is not the same as saying that the mother and the unborn baby or, as Senator Robinson said, the fertilised ovum, are equal. We are not discussing the word “equal” in a mathematical sense. We are not talking about two triangles, yet Senator Robinson set out in the best Euclidian style to prove that “the equal right to life of the mother” will make the 25-or 35-year-old mother and the fertilised ovum equal, as Euclid would say, in every respect. The only thing she left out was the QED at the end.
I do not accept that the phrase “equal right to life” could be construed as meaning any such thing. If we look at the right to life of the citizen which is guaranteed in the Constitution we can say in the same way that all citizens have an equal right to life, yet a situation can arise where the right to life of citizen A is seriously threatened or put at grave risk by citizen B. Citizen A in order to preserve or safeguard his right to life causes citizen B to die. I submit that there are many such  situations in which we would have to agree that no guilt attaches to citizen A because citizen B died, and yet the right to life of each was equal. This is why I do not accept that the phrase “the right to life of the mother” means what Senator Robinson says it means, or that its inclusion in the Constitution will have the effect of interfering in any way with existing medical practices or procedures in the treatment of pregnant women. I am not saying that Senators should not be raising these points or asking these questions or looking for as much clarification as possible on these matters, but I am satisfied it would be possible to do the same thing with the wording of any other Article of the Constitution as Senators are doing with the proposed amendment wording.
As regards the proposal that the word “prior” should be substituted for the word “equal” in the wording I am convinced that such a change would facilitate the introduction of limited abortion into this country and so I am opposed to any such change. I make these points to put on record why I as a lay person and a public representative will have no difficulty in supporting and recommending support for the proposed wording.
Mr. Fitzsimons: I will be brief. During the course of this debate in both Houses of the Oireachtas and on a larger scale outside we have heard many people say that they, were against the amendment and yet they were not in favour of abortion, and I accept that as genuine. However, I would like to know if anyone is in favour of legalised abortion. I believe that somebody somewhere feels sincerely that abortion should be legalised, that people who go abroad to have abortions should be facilitated at home and there would be no danger to the morals of the rest of the people in providing for that, but nobody has stood up to say so. Instead they say that society with its moral and social pressures is to blame for those abortions, but I do not accept that. Ambition or selfishness may be involved, practical reasons or sensible reasons may be offered, but I do not accept that the  guilt, blame or responsibility can be offloaded on society in this way.
Senator McGuinness referred to pronouncements of some medical men who were Protestants and she said they did not represent the voice of the Protestant Church. Without being critical I want to state that I find difficulty in deciding what is the unified voice of the Protestant Church. The Senator also said that the courts would be concerned with interpreting the wording of this amendment and not with the contributions of Senators. The Senator is a noted lawyer and what she says must be so, and yet I have read of a case where the judge quoted a contribution in this Seanad in deciding a case.
I regret very much the unfair attack on Senator Higgins. I would say in passing, not as a justification but as an excuse, that we can all be carried away if we feel very deeply about something. I am sure Senator Higgins will understand this and his shoulders are big enough to carry it and to be forgiving. Senator Robinson referred to sectarianism. She gave it more meaning than I would. She referred to it as the views of one Church. It is generally accepted that the word “sectarian” includes an element of bigotry and bigoted denominationalism.
Mr. Fitzsimons: I am not contradicting the Senator, I am simply saying that in my view the normal meaning that is taken from the word “sectarian” is bigoted denominationalism. There is nothing sectarian in this, and I have stated that before now. It is a question of human rights.
Senator Brendan Ryan also referred to not knowing for certain. There is only one thing that we are all absolutely certain about. We cannot be absolutely certain about anything else but we can have reasonable certainty. Senator Robinson said that questions are being asked and are not being answered. They are being answered and they have been answered  to my satisfaction. She also spoke in glowing terms about the university Senators and she was entitled to enthuse about them, but I feel she was unfair to others. All of them who spoke have made a very important contribution to the debate and I would describe them, in the phrase of Charles Dickins, in the superlative degree of comparison only. In my experience on housing schemes and in various situations often somebody who is doing the most menial task comes up with the solution, not the intellectuals. When this goes to the people they will be well able to assess the situation and they know what they are doing.
Senator Robinson expressed concern about equating the fertilised ovum to a woman. My understanding of the matter is that the same applies to the aged and the senile. The Senator also referred to the substantial natural wastage in lost fertilised ova. I have no answer for this apparent problem in nature. I cannot talk about a useful productive factor because the aged and senile would have to be considered under this category, but when the Senator referred to risks to mothers and deaths she was unfair to doctors and to the medical profession. I am satisfied from what the medical experts say that the risks which the Senator talks about are not there. When Senator Robinson says she is not reassured but more alarmed by what Senator Eoin Ryan has stated, I cannot attempt to make any meaningful contribution in that area. We have a notice on cigarette packets to the effect that smoking can injure health. Childbirth can be dangerous to health. I hope it will not be considered facetious of me if I say that sex can seriously damage your health.
The word “unborn” has come up repeatedly here and I define it exactly as I understand it. The Constitution deals with people. That is clear. I did state that “unborn” was an adjective qualifying a noun. What is the noun? Is it babe, baby, child, being or human being? I said that the noun was left out for some obvious and sound reason. The “unborn” refers to the gestation period of the human being. This period ends at birth. When  does it begin? I have asked before now when is this new life switched on? A new life is switched on at the moment of fertilisation, in other words at the time the female ovum is fertilised by the male sperm. This is a scientific fact and nobody on the other side of the House has proved that it is not a scientific fact. This gestation period lasts normally for 266 days. This question is being put to me, and rightly so, to answer as I understand it and I am doing that. The question is: do I consider it wrong to do something that would terminate this life at the stage between fertilisation and implantation? I must answer honestly, yes, I believe, it is morally wrong.
Mr. Fitzsimons: That is the point I make. We are not dealing with morals in legislation, we are not even dealing with the question of when the soul is infused into that body. That does not arise. It is morally wrong to interfere with human life at any stage in a way that will terminate that human life, from that moment of conception to death. That is the teaching of the Roman Catholic Church.
Mr. Fitzsimons: I am making the point that it is the teaching of the Roman Catholic Church that from that moment of fertilisation it is wrong to do anything deliberately and intentionally that would directly terminate that life. In the double effect situation, it is not wrong to treat the condition of the mother, where the fertilised ovum or child may be lost.
Mr. Fitzsimons: I want to be clear on this because this is important. I am prepared to state exactly what I understand. From the moment of fertilisation it is morally wrong to interfere with that life. The legal question is quite different. I have been reassured that existing practice will not be affected by this amendment. I am so assured by experts and I am quite satisfied about that.
The question was asked did the husband want to stand there and see his wife killed. These are emotional terms and I do not think that this situation would arise. Indeed, it is a reflection on doctors and on the medical world even to suggest that this situation could arise. This referendum is not about contraception. It is simply to ensure that abortion will not be legalised in the future except by a vote of the people. Finally, when all this smoke is blown away we will not see the monster that all the Senators on the other side have told us about. What is on the other side is a helpless, unborn baby. All we are trying to do here is to give the constitutional right which at the moment is enjoyed by the citizen to the human being for all of the period from the moment of fertilisation to birth. I see no reason why the word “equal” should be deleted and substituted by the word “prior” as in this amendment.
Mr. O'Leary: I do not intend to make a Fifth Stage speech at this stage. Therefore, even though I have listened to the other Senators and prepared a speech, having prepared it, I decided that it is not appropriate to what we are discussing. It is more in line with what we should say ultimately on Fifth Stage. Therefore, I am not going to deal with the question of which of the political parties should be most ashamed of themselves at the way  they behaved, at least not until Fifth Stage.
Mr. O'Leary: It is very refreshing to hear Senator Fitzsimons talk because it is quite obvious that his contributions are his own, are carefully prepared and he has made a really excellent contribution to this debate. He is prepared to put his thinking on the line and to express what he believes in. I disagree with him in about 95 per cent of what he says, but that is the way it goes. He has quite clearly raised the moral question of the effect on fertilised ova of this suggested amendment, but he has failed really to distinguish between the moral situation and the legal position. You cannot just get rid of the problem by saying that there will be no change in the present practice. That is the result rather than the means to the result. You cannot jump from an examination of the text before us to that conclusion without going through the intermediate process which I honestly feel that he has not gone through.
With regard to the amendment before us this amendment has not been argued by the proposer in the detail which I would expect for such an amendment. It is not sufficient for the proposer to promise to deal with points that will arise at the conclusion, because the conclusion is the conclusion and nobody else has an opportunity of expressing a viewpoint at that stage. I contrast the way in which the word “prior” has been generally referred  to but not subjected to detailed analysis in the way each and every other word has been subjected to analysis here, and the contrast is quite startling. If you say you are in favour of putting a new word in, well then it is only right and proper that you should subject that new word to the same degree of critical analysis to which you subjected the word it is replacing and the other words within the amendment itself. That has signally failed to be done. Those who contributed have failed totally to examine and to say what they think. They have stated what they do not mean by “equal” or what they think “equal” might mean, but they have not examined properly what positively they think the new wording with the insertion of the word “prior” and the deletion of the word “equal” would mean. The problems that that would create have not been fully learned.
Establishing a two-tier structure in the Constitution — unconnected as it would be with this amendment taken on its own or with any definition of the word “unborn”— would create an imbalance which would be unacceptable in the other direction. It is not only a question of what one does if there is an unborn person, child, foetus, and the mother is in a life-threatened situation. There is no point in not recognising the reality, and there are a number of other situations in which the balance between doing something or not doing something is very fine. Present practice is that if there is an overwhelming necessity to preserve the life of the mother that is done and it is right that it should be done. The introduction of the word “prior” would substantially change that balance. For those who would not support this amendment it is reasonable to pose to those who are supporting it that, as was demanded of the original wording by Senator Higgins on Committee Stage and repeated by Senator Robinson on Report Stage, they would have subjected this word to the same kind of certainty that they demanded of the other side. That has not been done because it opens up a whole Pandora's Box of what the prior right of the mother is. It does change the existing situation  substantially.
Therefore, in those circumstances it is reasonable to say that no reasonable person, irrespective of his or her view on the amendment itself, could be satisfied that the substitution of the word “prior” and the deletion of the word “equal” would not change substantially the existing law and the existing practice. Since what I would broadly seek to do is to maintain the existing practice, whether the other amendment does it is a different question. We have already examined that point.
With regard to this particular amendment to the amendment, the case has not been made that the balance would be substantially disturbed and the existing law would be fundamentally changed. I understand the frustration of those who seek to insert the word “prior” instead of “equal” but it is going much too far without the kind of analysis and examination which were demanded and not received partly because there was no attempt to do it and partly because the certainty with which it was being demanded was impossible to deliver anyway. This substitution admits the high standards set of such amendments by those who support the use of the word “prior”. To a certain extent, those who support that have failed to discharge the obligation which they impose on themselves. That is a reasonable position and in those circumstances I could not support the substitution of the word “prior” for the word “equal” because without subjecting it to the most detailed public examination here and from the examination I have made I have reached the conclusion, be it right or wrong, that in doing so I would fundamentally change the present situation and the present practice.
Mr. O'Leary: As I explained to Senator Robinson, in the present situation the dividing lines between where intervention and termination of a pregnancy takes place and where it does not take place is a matter of judgment and that point of intervention would be substantially changed by the introduction of the word “prior” and the elimination of the word “equal” because a more remote possibility of danger to the life of the mother would demand and be expected to receive protection. Basically I believe that the balance which exists at present and which is satisfactory would be changed in such a way as to change substantially the present situation in an indefinite way which would be almost incapable of definition. Over a period of time that prior right to life of the mother would grow into a right and a practice which would be far more widespread and far more all-embracing than the present situation. That is what would happen. There is no doubt about it.
There is also the point as to the quality of life and the health of the mother which would not be specifically life threatening there and then but we do not know whether the health of the mother would be entitled to be taken into consideration. If we did that we would change the law in a very fundamental way, and in a way in which I do not want to change it and it would not have my support.
It was interesting to hear what the Minister had to say yesterday. My understanding of it was a little different from that of Senator Robinson. I did not understand the Minister to say that he regarded the present wording as posing a threat to pregnant women. Other Senators for whom I have tremendous respect have made that suggestion but I did not understand the Minister to say it in the House yesterday.
The Minister, quite reasonably, called upon the Opposition to recognise that — this was clearly shown up by Senator Robinson in her quotation on Committee Stage — they were leaving the interpretation of the present wording to the Supreme Court and that the definition of what a life threatening situation is for the mother will be ultimately for the Supreme Court to decide. It appears that Fianna Fáil are happy that the court would uphold the established medical practice at present and that is what I would wish them to do. I do not think we can be certain that that is the case and therein lies the problem. The Minister's  approach was a little different in that what he was seeking was, if possible, to have a qualifying statement which would simply make it clear that any operations that are necessary to save the life of the expectant mother would not be unlawful. Sometimes in introducing a matter like this, it can be easier and more straightforward to put things in that way, that operations that are necessary to save the life of the expectant mother would not be unlawful. You can leave the general law there. I understand that to be the Minister's position. Generally speaking, the case for this amendment has fallen substantially short of what is necessary to encourage me to support it.
Mr. E. Ryan: I will try to be fairly short because I recognise that this is a debate in which the same questions are being asked and the same answers are being given. Nobody is satisfied with the answers they are getting but they are the answers.
Senator Robinson said that, far from wasting time, she would be prepared to spend ten years here if her stamina permitted rather than allow the people to vote. In the early stages of this discussion it was said that the introduction of this amendment showed lack of confidence in the courts and in the Oireachtas. Nothing I have yet heard in this discussion went anywhere near to expressing the extraordinary lack of confidence in the people which was expressed by Senator Robinson. She would talk for ten years rather than allow the people to express their views on this matter. That seems to me a quite astonishing lack of confidence in the people and the democratic system. However, if necessary we will go on discussing this again and again, asking the same questions and giving the same answers.
Up to this amendment in this House, the problem for a lot of people was giving equality to the foetus which was at its very early stage and where it could be argued that it was not a human being, it was so early that it should not have equality with the mother. That was a problem which had to be given very serious consideration. But we are now talking about  priority, the prior right of the mother, apparently at any stage, during pregnancy of eight or nine months, or even a few days before the child is born because this amendment seeks to give a prior right to the mother, there is no qualification, and it would be a right up to the very day before the child was born. It seems to be going very far indeed to deny equal rights to a child which had reached that stage. I think by anybody's definition or belief a child who is so near being born would be a human being and should have equal rights with the mother. It is no longer a question of whether it really was a child, whether it really had a soul, whether it had the full characteristic of a person but would give prior rights to the mother right up to that stage.
Senator Higgins argued in favour of this amendment by saying that it would remove some of the doubts about the rights of the mother. It seems to me that it would remove all of the doubts as to the right of the child, because if the welfare of the mother is always to have priority, which of course this says, then it would be no exaggeration to say that the whole constitutional amendment would be quite worthless. We would be preparing the way for legislation to allow abortion if the physical or mental health of the mother was at risk, psychologically or any other way, that then she must have prior rights. That is what it must mean. In this respect I think that Senator O'Leary has said something very similar and he must forgive me if I am misrepresenting him.
If we were to adopt this amendment and give prior rights to the mother then we would be preparing the way for a situation in which any excuse could be given for saying that there must be an abortion because the mother must have prior rights and her health was at risk in some way, mentally or physically. Of course we would then be so near the situation that exists in many other countries that we would have sold the past, we would have reached the stage when very soon, with a few more moves in that direction, we would have abortion on demand. You cannot have a situation where you are going to give prior rights  to the mother without saying that the infant has not equal rights and without saying that any case can be made for giving prior rights and, in such circumstances, this amendment would be worthless and the life of the unborn would be very seriously at risk, not perhaps today or tomorrow, but in the future.
I can see why Senator McGuinness put down this amendment. I can see her concern for the mother. I can see why she seeks in some way to protect the mother, to express concern for the mother or to try and arrive at a formula which would ensure that the mother's life would be respected and protected. But I have to say that if this wording is used “prior” means more, it means better, it means superior, it does not mean equal because if it meant equal then there would be no necessity or purpose in the amendment. It means superior rights and once you have superior rights then any situation in which the life or health or anything in connection with the mother can be used as a reason for having an abortion.
The Minister intervened yesterday to express his concern and apprehension in this matter. Senator O'Leary said that there seems to be some difference of opinion as to what exactly his view was. I was a little uncertain myself. I understood him to say that an attempt had been made in the other House to introduce some kind of an amendment which would protect not merely the mother but a doctor who is treating the mother so as to save her life. He asked why it would not be possible to have such an amendment in this Bill. I do not wish to be contentious but if the Minister were seriously concerned, and if he regarded this as a really serious danger, then he should act and do something about it. He has the ability in this House, he has the voting strength in this House to introduce an amendment to support the present amendment. The fact that he does not consider it necessary to do what could be done in this House leads me to assume that although he is expressing a reservation, concern, that he is making a point, he is not unduly apprehensive that the Bill as it stands is going to lead to a dangerous position for women in these  situations. I must and do give him credit for the fact that if he was so concerned that this was a real danger he would act and do something about it. Because he has not acted and has not done what he certainly could do in this House, then I can only assume that he thinks it is a good and interesting point, something which should be explored but that he does not really believe that it is going to lead to a dangerous situation for mothers.
In his intervention he has attempted to shift the responsibility to Fianna Fáil, to shift the responsibility to those whom he describes as the real sponsors of this Bill. I spoke earlier about shifting responsibility, about the extraordinary situation of a Minister putting a Bill through this House, not standing over it and asking another party to accept responsibility for the Bill, but I am quite happy to accept responsibility for this Bill. I do not see the problem or the danger in the way the Minister does. I do not agree that the danger which he posed is a real danger. If I did see it in that way and if Fianna Fáil saw it in that way then I can assure you Fianna Fáil would act and would bring in an amendment and would do what they considered necessary to meet this situation. In so far as responsibility for dealing with the situation is concerned I assure the Minister and the House that Fianna Fáil accept their responsibilities fully in this matter and would introduce any amendments, or attempt to introduce them, that they considered necessary to cater for any danger or defect that exists in this Bill.
The Minister has suggested an amendment to say, as I understand it, that certain actions would not be unlawful, that if a doctor carried out an operation to save the life of a mother it would be written into this Bill and into the Constitution that that particular operation was not unlawful, but how you would define the circumstances in which a doctor might, should or may, carry out such an operation and that it would not be unlawful would, it seems to me, be a very difficult task. Again, it is a most unusual suggestion to make. It is most unusual to incorporate in a law, in legislation, the  fact that something shall not be unlawful. I am sure it is not unique. I cannot think offhand, but it is quite likely that here and there there are sections in Acts to say a particular thing shall not be unlawful, but by and large it is not the normal thing to do.
The normal law says that certain things shall be unlawful, certain things shall be offences, certain things shall be crimes and it is for the court in each case to decide whether a particular incident or action committed by somebody is contrary to the law, whether in all the circumstances it is breaking the law. This is obviously the correct way to deal with problems of this kind, to say what the law is, to say what is an offence and allow the courts to decide whether in a particular case the law has been broken. To approach it from the other point of view, as I say, may not be unique but it certainly would be unusual. To take one example, the law does not say that if a surgeon has to carry out a very difficult operation in a critical case, and I am not talking about a mother and child, I am talking about a case where somebody is critically ill and that the surgeon decides to operate, to perform some very unusual, very difficult, critical kind of operation and it fails, and as a result of the operation the patient dies, there is no law I know of that says a surgeon may carry out a critical operation and even though it is not successful and the patient dies that it shall not be unlawful for the surgeon to do that. Of course, no court would dream of finding a surgeon guilty of manslaughter merely because the operation failed, even though it was an operation where the surgeon knew very well that by attempting it he was putting the patient's life in danger, even though it was quite clear that the result of the operation might be the death of the patient.
There are many other instances — not even medical — where people have to make decisions. A fire chief may send firemen to do things he considers necessary to try to curtail a fire and save lives and his action may result in loss of life. Nobody says that he does anything wrong there. There is no Act which says that if a fireman takes that kind of decision it  shall not be unlawful. It may sound a little bit crazy to be giving these instances, but it is no more crazy than the kind of situation where it is suggested that a provision should be written, not only into the law but into the Constitution, that if a doctor in a situation involving a pregnant mother takes a certain action which he thinks in all the circumstances is the right thing to do, that it shall not be an offence if the end result is the death of the foetus. To try to write this kind of thing into the law or even into the Constitution is quite unnecessary, unreal and to get back to what we spoke about earlier, shows a complete lack of confidence in the courts and in the whole system.
My view is not shared by some of my colleagues in the Seanad but is, on the other hand, shared by many eminent lawyers. My view is that the constitutional amendment will not lead to any change in the law, that it will merely ensure that the law is not changed. That is its purpose and that I think will be its effect. Of course I could be wrong.
Senator Robinson says that the amendment will change the law and that it will make very serious changes in the law. I do not agree that she is right — but if she is right then it seems to undermine one of the principal arguments that is being made about this constitutional amendment from the very beginning because most of the brunt of the initial and continuing attack on this amendment was that it was quite unnecessary, that this whole thing was a waste of time, a waste of money and a waste of resources. It was said we could depend on the courts and on the Oireachtas to protect the unborn child and that the rights of the unborn child were in safe hands, that the whole thing from beginning to end was unnecessary. This, of course, is the nub of this discussion. Senator Robinson says that this gives new rights to the unborn, that it will effect a very serious change in the rights of the unborn, obviously changes for the better, changes in relation to the mother. If she is right in saying that, and perhaps she is right, it seems to be quite clear that the right of the unborn up to now was quite uncertain and vague and not what it should be. If that is so, then  this constitutional amendment is quite obviously very necessary. If it needed this amendment to change the law to give the unborn the rights that most people think they should have, then the constitutional amendment was necessary. It confirms my belief that we should have it. In that situation I am in the position of saying, yes, perhaps I am wrong from the legal point of view but I am certainly right from the point of view of wanting to have this amendment to the Constitution to give rights to the unborn that apparently they did not have up to now. In this respect you cannot have it both ways. Either it was unnecessary, the unborn was quite safe, or the rights have been changed so as to give the unborn fundamental rights, in which case it was necessary.
Having said that, I get back to the position of reiterating my belief and the belief of many eminent lawyers that this constitutional amendment will not lead to a change in the law as it is administered on a day-to-day basis. It will not make any change. We will have the approach from both the medical point of view and the legal point of view exactly as it was up to now.
Senator Higgins has given us a rather colourful scenario of the kind of things that are going to happen if this amendment is passed. He has conjured up crises in the operating theatre, of frantic consultations among the medical staff in any given hospital about whether a given case can or cannot be now operated on because of this constitutional amendment. He has talked about appeals to the Western Health Board and all kinds of quite alarming situations, if they are correct. I have to say that there is more than an element of fantasy about some of the situations which Senator Higgins put before us. I do not believe that there will be that kind of change.
I believe that the 1861 Act will still be the Act which will apply in these cases, an Act which has been administered and has been in operation for over 100 years. In the kind of situation where a doctor has to decide in a particular case what he should do and what he can do  and what has been successfully done over these years, I believe the law will be administered in future as it has been in the past as far as the legal point of view is concerned. I believe that medical practices which operated in the past will continue to operate and be applicable in the future.
There is a wealth of medical opinion which is on record as saying they are quite happy that that will be the situation in the future. There are doctors — and Senator Higgins quoted a letter from a doctor — who do not agree. That is one of the problems in this case, that some lawyers and doctors do not agree about this. I can only say that I accept the expert view of some of these lawyers and doctors. I adopt the view that this is not going to make any change from a practical point of view. I am confident that commonsense will prevail in the future in the operating theatre and in the courts. My conviction in that regard at an earlier stage has been severely criticised. Not only have I been criticised but apparently commonsense was given a very low rating in dealing with these matters.
Medical practice is one thing and courts and the law are another thing. In the application all these laws and all these practices, unless they are complied with and implemented with commonsense they are all worthless. I consider that in the implementation and the application of these matters commonsense is very important indeed. It is commonsense that has resulted in the acceptable way in which these matters have been dealt with over the last 100 years. That same commonsense will prevail and ensure that these matters are dealt with in an acceptable way in the future.
When the dust settles on this controversy, whether it takes ten days, ten years or whatever it may be, then this constitutional amendment will be seen as necessary and worthwhile legislation. Again, I have to remind people who are old enough to remember it about the introduction of the 1937 Constitution when we had the most appalling scaremongering about the things that were going to happen if the Constitution was introduced,  about the way in which women were going to be affected, families were going to be affected and the number of things that were postulated at that time in that campaign. There were a number of hair-raising possibilities raised as to what would happen if that Constitution was introduced. It was absolutely appalling. The present situation is quite mild and quite restricted when compared to that time.
I am reminded of that time by some of the things that have been suggested during this debate, some of what I can only describe as scaremongering, warning the people what may happen if they pass this amendment. It reminds me of 1937. Of all the bad results which were threatened at that time, none of them proved to be true. That Constitution was an extremely good one. It has stood up to time very well. It has been an extremely good document and with this amendment it will be an even better one.
Mr. Hanafin: At this point I would like to state my conviction on this question of the supposed threat to the life of the mother which it is said this amendment would entail. It seems to me that this argument is based on the mistaken assumption that the amendment if passed would confer some sort of absolute right on the child so that no medical intervention which might have dangerous implications for the child could be considered. But surely the words themselves make it absolutely clear that there is no question whatsoever of an absolute right. After acknowledging the right to life of the unborn, the amendment goes on to guarantee to respect that right with due regard to the equal right of the mother and to defend and vindicate that right as far as is practicable. It is abundantly clear, therefore, that we are not talking about an unqualified or absolute right.
The qualifying phrases “with due regard to” and “as far as practicable” clearly imply the possibility of circumstances in which the guarantee of the child's right to life may not always be upheld. These qualifying phrases have not been plucked out of the air. They are already in use in other sections of the  same Article of the Constitution, Article 40, which we are now proposing to amend. They are used in relation to the protection of the rights of citizens, born persons, who have nonetheless equal rights. The fact that in this amendment we are also dealing with equal rights does not mean that the Constitution does not recognise the possibility that it may not be appropriate or feasible in all circumstances to uphold or defend the right. It has been said that a doctor might not be able to perform an operation to save the life of the mother if to do so might endanger or even end the life of the child. Since the amendment does not change the existing law under which medical practice operates, this fear must arise from the assumption that a court would grant an application to prevent such a life-saving intervention on the grounds that it infringed the constitutional right of the child, but no court anywhere would rule that a doctor must not perform an operation to save the life of a mother unless the law clearly and unambiguously obliged the court to rule in that way.
It is abundantly clear that there is nothing in the wording of the amendment which would oblige an Irish court to rule in this way, a way in which, indeed, no court would ever wish to rule. I believe, therefore, that there is no justification whatsoever for the fears that have been expressed or for the needless anxiety which has been generated about the consequences of inserting this amendment in the Constitution. In their statement on this matter, the 300-member Irish Association of Lawyers for the Defence of the Unborn put it bluntly, and I quote: “We unequivocally maintain that there is nothing in the original wording which would oblige an Irish court to make such a grotesque decision as that suggested by Mr. Sutherland”.
As has already been mentioned in this House, all five of the university professors of obstetrics and gynaecology — practising doctors who are also teaching the doctors of the future — have stated that they read with astonishment the suggestion that the amendment might endanger the lives of mothers. Concluding their statement issued on 15 April the  professors stated, and I quote:
We have found the original wording proposed for the amendment to be entirely satisfactory. As doctors, we believe, that this wording would present us with no difficulty in the proper discharge of our professional responsibility.
That statement was signed by Professor John Bonner, Professor Eamon de Valera, Professor David Jenkins, Professor Kieran O'Driscoll and Professor Eamon O'Dwyer, by all five of the university professors of obstetrics and gynaecology in the Republic. Their word on this matter is good enough for me and it should be good enough for the House. I believe that it will be good enough for the people when they come to cast their votes in the referendum.
Séamus de Brún: Níor labhair mise focal fós faoin leasú seo ar an mBunreacht agus ní labhróinn anois ach an oiread ach go dteastaíonn uaim focal a rá faoin leagan Gaeilge san leasú seo. Teastaíonn uaim é sin a dhéanamh mar go bhfuair an Seanadóir Higgins agus an Seanadóir Robinson locht inné ar an leagan Gaeilge mar atá sé ins an mBille seo ar an leasú ar an mBunreacht.
Ba mhaith liom a rá i dtosach go dtuigtear gur aistriúchán ar an leagan bunaidh i mBéarla atá i bhfoclaíocht na Gaeilge. Tá a fhios againn go léir na fadhbanna a bhaineann le aistriúchán ó theanga amháin go dtí teanga eile — is cuma cén teanga atá i gceist. Chomh maith le sin, ní teanga gnáth-chomhrá atá ins an leagan Gaeilge seo. Is leagan acadúil, dlíthiúil atá ann agus dá bhrí sin ní féidir a bheith ag súil go mbeadh an fhoclaíocht agus an chaint díreach mar a bheadh sí ag daoine dá mbeidís ag comhrá le chéile.
Féachaimís ar an leagan Gaeilge mar atá. Ba mhaith liom a rá i dtosach go measaim agus go bhfuil mé cinnte de go bhfuil eolas maith ag na daoine a rinne an t-aistriúchán seo ar theanga na Gaeilge; go bhfuil an teanga labhartha agus an teanga scríofa acu ar a dtoil. Dá bhrí sin ba cheart go mbeadh sé ar a gcumas leagan Gaeilge a chur ar fáil ar rud chomh simplí leis an mBéaria atá  anseo ins an leagan bunaidh agus measaim go bhfuil sin déanta acu. Is féidir liom a rá dom féin — agus ní ag maoímh atáim ansin — go bhfuil eolas maith agam ar an teanga labhartha agus an teanga scríofa. Deirim anois go bhfuil mé lán sásta leis an leagan Gaeilge mar atá sé ins an mBille seo atá os ar gcomhair.
Féachaimís anois ar an leagan Gaeilge mar atá: “Admhaíonn an Stát ceart na mbéo gan breith chun a mbeatha, agus ag féachaint go cuí do chomhcheart na máthar chun a beatha, ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint in a shuíomh lena dhlíthe sa mhéid gur féidir é.
Fuair an Seanadóir Higgins locht ar an gcéad chuid den leagan sin: “Admhaíonn an Stát ceart na mbeo gan breith.” Measaimse gurb é sin lán-chuí ceart na nóg, ceart ha ndaoine, ceart na bpáistí, ceart na ngarsún atá beo i mbroinn a máitreacha ach nár rugadh fós. Sin é is ciall leis an méid sin den fhoclaíocht Gaeilge atá anseo, “ceart na mbeo gan breith”. Tá na garsúir beo ach níor rugadh iad fós, agus céard atáa micheart leis an gcaint sin: “ceart na mbeo gan breith.”“...agus ag féachaint go cuí do chomhcheart na máthar chun a beatha”— beatha na máthar atá i gceist ansin? “Ráthaíonn sé gan cur isteach lena dhlíthe ar an gceart sin agus ráthaíonn fós an ceart sin a chosaint is a shuíomh lena dhlíthe sa mhéid gur féidir é.” Mar a dúirt mé, measaim go bhfuil sé sin lán-chuí, gur Gaeilge í gur féidir ghlacadh léi agus a sheasfadh faoi aon gheallúint nó aon scrúdú a déanfaí uirthi in aon chúirt dlí.
To summarise what I have said, I have risen to speak because the Irish version of the wording of the amendment has been called into question and has been ridiculed here yesterday and previously by Senator Higgins. I regret that Senator Higgins is not here to listen to me. I believe in all humility that I have sufficient knowledge of the language, both orally and otherwise, to give an opinion as to the adequacy of this wording in the amendment that we have here.
I accept the wording in Irish as being quite intelligible, quite correct and a  quite satisfactory translation of the original version in English. I have referred particularly to the first sentence in the Irish wording “ceart na mbeo gan breith”. Emphasis has been placed here on “ceart na mbeo”. Senator Higgins said rather scathingly that he assumed that it was the plural of “Beo”. It is, and that is what it should be in that context because we must remember we are not using the language here as if we were conversing. It is not conversational language but neither is the English version. It is academic, it is legal structured language appropriate to the purpose for which it is being used here. For that reason it must be, as it is here, a satisfactory and a complete translation of the original English wording of the amendment. I believe it is and I am quite satisfied with the wording in English.
I regret that Senator Higgins is not here to hear me say that because I am convinced that what I am saying is correct. I also want to say that the people who translated that are people who know the language very well, who are experienced translators, who have been working in that field for many years. They know the language orally and grammatically and are capable of producing a full and complete translation of the English version of the amendment. Tá mé lánsásta leis an bhfoclaíocht atá anseo san leagan Gaeilge den Bhille seo ar Leasú den Bhunreacht mar atá sé os ár gcomhair.
Emphasis was put on “ceart na mbeo gan breith”, disparagingly I would add. If we go back to the most fundamental article of our faith, that is the Creed, Cré na nAspal, we find there reference to “an beo agus mairbh”. The contextual reference to “mbeo” in the Creed has stood the test of centuries. It is the version that is in the catechism of Dr. McHale of Tuam who was known as the lion of the fold and whose knowledge of Irish was not in question. In that Creed it is “a chuaigh suas ar neamh, atá ina shuí ar dheis Dé, a thiocfaidh arís le breithiúnas a thabhairt ar bheo agus ar mhairbh”: that is, “who will come again to judge the living and the dead”. What is wrong with that? That is the same “beo” that is used  here in “ceart na mbeo gan breith”, a thiocfaidh arís le breithiúnas a thabhairt ar an mbeo, sé sin ar na daoine atá beo — the people who are alive now. If it be right in a context of that kind, in Cré na nAspal, the most fundamental article of our faith, and the creed I learned in my youth, what can be wrong with it in a translation of “to judge the living and the dead” or the translation of “the State acknowledges the right to life of the unborn”? It is correct, it is fundamentally sound.
I do not intend to go any further into the amendment itself. Much has been said already and all of the ground has been covered. We have heard many eloquent, entertaining and fundamentally good speeches from various Senators. The main difficulty seems to centre on the equal rights of the unborn and the mother, “comhcheart na máthar.” That has been traced in depth legally, theologically and otherwise, I will not go into it except in a very simple way. I do not wish to delay the House unduly.
First of all, it is right for me to say that it is universally accepted that life begins with conception or fertilisation. I believe that is generally accepted in this House. If it is not, I should say that I believe that is the case, that, as Senator Robb, to whom I listened carefully, so rightly put it in his contribution a new life begins at conception or fertilisation. If that be so, the blueprint for a human being is thereby delineated in all its details. We are told by theologians, medical man and other experts that the whole blueprint of a human being is set out in that act of conception down to the main features of that developed foetus and child at the time of birth, even to the details of hair, eyes and the main characteristics of that human being when that human being comes to the stage of coming into the world.
If that is so — I believe it is so — nobody has the right to perform any action in any way that will interfere with, terminate or destroy that human life until it has the right and reaches the time to be born. That is where the difficulty arises about equal rights of the child and mother or equal rights of the unborn and the  mother. If they are two human beings they must have equal rights. Therefore, as I said, any act by anybody to destroy, interfere with or terminate the life of either that unborn child or the mother who bears that child in her womb is morally wrong.
Let me go to the next step. When a doctor is dealing with a pregnant woman he has not one but two patients, the woman and the child she is bearing. That doctor has two patients. If things begin to go wrong in the pregnancy he must do all he can to keep the pregnancy going until the child reaches viability, that is until the child is able to live on its own and until there is a good chance of being able to save both mother and child in any necessity that may arise.
If there is no chance — this is the crucial question — of sustaining that pregnancy, if there is a clear indication that the mother will die before the child can be born alive, in other words before the child can be taken out, the doctor has to choose between two deaths or one. He is not choosing between the mother and the child, he is choosing simply between two deaths or one death. That is where the matter of equal rights comes in here. In simplicity, that is what the doctor is faced with, the choice between two deaths or one. He is not choosing between the mother and the child as such. There is nothing he can do to save the child, because the child must die obviously if the mother dies because it is too young to survive outside the womb, therefore it will not survive on its own outside the womb. The doctor does not want to cause the child's death because of anything that may terminate the life of that child. Perhaps the mother does not want that child to die either. Even given the present state of medical knowledge and expertise there is no way of saving the child. The doctor may intervene to save the mother in such circumstances. That happens. It is a usual occurrence. That is where I think the difficulty arises between the equal rights of the mother and the child.
I agree with Senator Eoin Ryan when he reminded us of the introduction of the Constitution in 1937 and all the opposition  that it met with at that time. I am old enough to remember that time and old enough to remember all the opposition the Constitution met with. Thank God, none of the things that was threatened at that time ever happened. The Constitution has been found since to be one of the best instruments——
Séamus de Brún: I have finished. Tá mé réidh. Tá mé sásta go bhfuil an leagan Gaeilge den leasú seo curtha go ceart agam. Sin é an aidhm a bhí agam. Tá mé réidh. Is féidir leis an Aire dul go dtí an Teach eile len a vóta a chaitheamh.
Mr. O'Leary: As I understand it, the position is that as it is the intention to continue sitting that it would be within your authority to decide to take it on the conclusion of the business of the House and to vary the decision the House made this morning in that regard. Unfortunately 4.30 was mentioned this morning.
Mr. Fallon: Like other members of my party I spoke on Second Stage. It was not my intention to speak on Report Stage but, having listened to much of what has been said, I felt obliged to comment further and to make my views clearly known. I certainly have no qualms of conscience about this particular matter. It is well that I should repeat much of what I said on Second Stage.
I listened very attentively to Senator Robinson. I regret she is not here. Maybe she will come in before I finish. She rightly made the point that this is very much a legal, medical problem and she also made the point that those who are not legal or medical people should endeavour to read about the problem and what those for and against this amendment have to say. I have done so as indeed have many Members of this House who are not legal or medical people. Certainly, from what I have read, I have no doubt that the amendment is right and that the wording is right.
Senator Hanafin, Senator Honan and other Members referred to the statement of the university professors of obstetrics and gynaecology, five eminent people who between them have been present at the births of thousands of babies, some of them probably difficult births, not the straightforward births which most of them are. These people have said clearly that they found the original wording proposed to be entirely satisfactory. The ethics committee of the Irish Medical Association, a very eminent group, also found no difficulty with the wording. They could not agree with the theory of the Taoiseach or of Senator Robinson that women were condemned to death. They disagreed totally with that.
Senator Hanafin referred to the Association of Lawyers for the Defence of the Unborn. They represent 300 or more lawyers. They said they were satisfied that existing lawful, medical treatment of the mother during pregnancy would continue  to be lawful. These are eminent people and they know what they are talking about. I know, too, that the wording was prepared in consultation with very eminent people who represent a very broad opinion in the medical, religious and political fields. Everybody has, in fact, had a say on this wording. Senator Robinson referred to the lack of input by women's groups. I know that the pro-life movement groups in every town are composed mainly of women. Certainly it is wrong to suggest that women have not had an input into this matter.
I listened to Senator Robinson — I deliberately waited in the hope she would come in because I would prefer her to hear what I have to say — and her authoritative address on this matter. She spoke at length on this important subject but at the end of the debate, leaning over to Senator O'Leary, she admitted that he was modest enough to admit he could be wrong. She then said that she too could be wrong. The whole thrust of her emphasis was the danger of the death of the mother. She highlighted this as a very vital and important matter. However, at the end of her contribution she said she could be wrong. That is what I found very wrong with her contribution. By her contribution she has done a lot of harm to mothers-to-be in Ireland. She has caused, in my opinion, unnecessary alarm. If she was 100 per cent certain about what she was saying she should say so, but she said she could be wrong. Her statements may cause much unnecessary alarm to mothers-to-be and that is why I decided to intervene in this debate. I do not propose to delay this important debate further but it seems that Senator Robinson is endeavouring to confuse the issue. She appears to hope that by causing confusion she will be successful. I do not think she will.
Mrs. McGuinness: I gather no one else wishes to contribute before my reply. I am very pleased, and grateful, that so many Fianna Fáil Members have contributed to the debate on this amendment because I was worried that yesterday, on the previous amendment, so few  Members appeared to be willing to contribute although they were, perhaps, opposed to my idea. They were prepared to vote but they were not prepared to argue the matter. While I may disagree with what they said I regard it as being a compliment in many ways that they have taken the trouble to speak and argue with me. I appreciate quite a lot of what they said. I also appreciate — this comes through clearly in many of their contributions — how sincerely they feel when they argue this matter. I suggest that, perhaps, sometimes their sincerity is, as it were, a sincerity of faith, a sincerity of religion, a sincerity of genuine charitable feeling rather than a sincerity of really understanding the difficulties which this wording is creating. That does not detract from my appreciation of what they have said.
It is significant that Senator De Brún — perhaps he was unconscious of this — when he was talking about the use of the word “beo” referred back to the use of the word “beo” in the Apostle's Creed. I agree with him that this is the way the word is used in the Apostle's Creed and so on, but, at the same time, the close connection between the religious significance of what he is saying and the way in which the wording is put is significant.
Senator Fitzsimons, when he referred to morality continually he said he was not dealing with the soul but, at the same time, the moral content of what he was saying came through a great deal more than, as it were, the legal or the factual content. We still must keep asking ourselves the question: are we, in fact, legislating in terms of the morality of one group of people, or are we legislating for the whole country? When I say the whole country I am talking in terms of people who are starting a New Ireland Forum, who are trying to persuade those who are not now under our technical jurisdiction that they should join us. As regards emotional terms, certainly people have talked in emotional terms but they were on both sides. If we talk in emotional terms of a threat to the mother, there is no doubt that to use the phrase, helpless unborn babe, as Senator Fitzsimons did, are also emotional words. It is a question on  which emotion does come into it. I do not think we can avoid that.
Before I go into my main reply to the debate there are a couple of matters I should like to say about what Senator O'Leary and Senator Eoin Ryan said. Senator O'Leary attacked me for not dealing with the matter in detail in my proposal. I must confess that he probably has some justification for saying this. If so, I can only say mea culpa. Perhaps I should have gone into more detail on an analysis of the word “prior”. Basically I am a simple woman and to me “equal” means “equal”, “prior” means “prior” and “life” means “life”. When I talk about equal rights I do not mean equal rights as conditioned by the fact that doctors already have a practice they are going to go on doing, regardless of what the law says. When I say “prior” I simply mean that if one is deciding between the life of the foetus and the life of the mother in a situation of death threatening, I consider that the life of the mother, possibly, should have a prior right.
As far as the word “life” is concerned, when I say a threat to life, I mean a question of life and death and I do not mean a question of welfare. I deprecate Senator Eoin Ryan's effort to suggest that what I am proposing is that the welfare of the mother should take priority over the life of the foetus because that is not what I am suggesting. This is verging on the same old accusation that anyone who opposes the amendment is somebody who is trying to bring in galloping abortion on all sides.
As far as the prior right to the life of the mother is concerned, I cannot understand why Senator O'Leary says that this would change existing practice because it seems to me that what everyone is saying, and presuming, is that in the situation — despite anything the constitutional amendment may say — where there is, in fact, a life-threatening problem and one has to choose between the life of the foetus and the life of the mother, doctors do preserve the life of the mother. A prior right is assumed. Therefore, my amendment would not change anything. Senator de Brún said this did  not arise and I am sure he was perfectly sincere in what he was saying but he is wrong in that there are undoubtedly at present situations where there is severe kidney disease or severe high blood pressure of the mother, where caesarian operations are performed in or about the 24th week of pregnancy where there is undoubtedly a very severe risk to the life of the foetus. One cannot say for certain that the foetus will die but, let us be frank, the foetus's chances of life are not really all that great. Yet these operations are currently performed in our maternity hospitals because they are essential to preserve the life of the mother. There the doctor is, in fact, making a choice. He may not be making an absolute choice that this one is going to die or this one is going to live but he is coming pretty near to it. That is the type of operation which eminent doctors are worried about.
I completely agree with Senator Eoin Ryan that if Senator O'Leary's party are so worried about the use of the term “equal” and if they feel that a subsidiary term should be put in, as the Minister suggested, then why did they not come in here with an amendment to say so? If they believe this they should act on their beliefs and should stand up and be counted. It is not much use coming in here and saying one disagrees with Senator McGuinness's amendment because it will do this, that or the other if one is not prepared to do anything to deal with the situation which that person sees as a danger too. If the Minister feels that way he should bring in an amendment and if Senator O'Leary feels that way he should bring in an amendment. They should not just sit here and criticise other people's amendments.
I suggest that if it is argued that my suggestion of “prior” might bring in the idea of welfare or something more indefinite rather than actual life or death then the phraseology used by the Minister, and by Senator O'Leary, about operations to save life would surely be open to the same interpretation, that it would be possibly operations to preserve the welfare, the health or whatever of the mother. Basically, as far as the meaning of the word is concerned it is not that I  do not understand the meaning of the word “equal”. I do, but I am saying that when one says “equal” one means equal. That is the problem. When I say “prior” I mean “prior” and I mean that if there is going to be a threat of death to one or the other I would prefer to preserve the life of the mother. I am not very ashamed of that. If I am being told that I am a galloping abortionist by saying this well, I am a galloping abortionist and that is the way it is. I am talking about actual life, not about welfare. I am certainly not talking about, on any excuse, as Senator Eoin Ryan said, or any case can be made, for superior rights in any situation.
I cannot see how that could be argued when the Bill specifically refers not to right to welfare, right to health or anything like that, but right to life of the unborn and right to life of the mother. If we are going to talk in welfare terms and say right to welfare we might just as well say the unborn under this constitutional amendment will have a right to welfare and, therefore, it should be legally forbidden for, for instance, pregnant women to smoke because it is a well established threat to the welfare of the foetus. It is not necessarily a threat to the life of the foetus but it is certainly a threat to the welfare of the foetus and that is very well established. If we are going to say life means welfare that is what we are going to put in rather than a simple protection of the right to life.
Senator Eoin Ryan raised the problem about writing things into the Constitution, writing limitations to the amendment into the Constitution, which he described as crazy writing into the Constitution. The trouble is that that is precisely the exercise we are engaged in, crazily writing into the Constitution, where the law has protected us all along and shows no signs of not protecting us in the future.
Senator de Brún said nobody had the right to perform any action to interfere with the right to life of the foetus and yet he went on to say that he was convinced that present medical practice will continue. I suggest that this is an illogical position because at present medical practice does interfere with that right and if  one takes an absolute stance it should not be happening. Also, if one says no one has the right to perform any action to interfere with the right of the foetus one would not even be allowing equal rights to the mother, one would not be allowing any rights at all.
The difficulty of definition remains unanswered and unsolved. To say that if we assume that the use of the word “equal” will mean that doctors will stand by and not do anything and let mothers die is a reflection on doctors is all very well but, surely, it is also a reflection on doctors to say if we bring in a law to say they are not to do something and they do it regardless of the law, take no notice of the law, that is also a reflection on doctors. Some doctors are prepared to say, “I know religiously speaking I should be doing this and, therefore, I will take no notice of the law.” However, other doctors are worried by the necessity to obey the law. One has to choose between the eminent persons, both are equally eminent. There is the presumption being spoken of that present practices will continue but that is only a presumption. It is not a certainty.
In this context the Minister's contribution to the debate was crucially important, as Senator Robinson said. The Minister said he had a feeling of a need for a subsidiary statement, that he needs a statement that interventions to save the mother's life will not be unlawful, or interventions to preserve the mother from death will not be unlawful. If the Minister says that this is so the extraordinary thing is that, having failed to get this subsidiary statement, this clarification, he is still prepared to sit here and by his inaction to pass the very wording about which he has such doubts.
The Minister in his statement tried to shift the responsibility to Fianna Fáil. I said quite clearly on Second Stage what I feel about Fianna Fáil policy on this matter but it must be remembered that Fianna Fáil are not the Government. The Minister is the Minister. It is the responsibility of the Minister, not the Opposition's responsibility. To do what he is doing, passively to promote the present wording — that is what the Minister is  doing; he is not abstaining and saying he is Pontius Pilate and is washing his hands of what happened — is totally irresponsible given the feelings he has expressed. For the Minister to make pleading and pathetic statements about his waiting for Deputy Michael Woods to give the answers to his questions and so on does not in the least alter the fact that he has simply thrown in the towel and decided to give up fighting for what he genuinely believes.
I would like to deal with one other aspect of the matter in a rather fantasy way. I would like to put that aspect to the House because it is important. Senator Robinson said, in a fairly brief reference to this, that if this matter affected men rather than women we might have a very different attitude to this comfortable presumption that medical practice would go on, as it were. Women do not get pregnant by themselves as all Members know. Even the ovum must be fertilised.
What is this wording about? It is wording about the equal rights of the mother. Why is this matter about the equal rights of the mother included at all? Surely it is about a decision which occurs, and occurs not all that infrequently providing one includes the ectopic pregnancy and the uterine cancer decisions. They must be included legally. The double-effect theory does not have legal effect. Decisions as to whether one ends a pregnancy, or whether one creates a real risk to the life of the mother do not occur all that infrequently. This threat to life is strictly confined to women because only women are pregnant.
Let me create a theoretical scenario and in these days of employment and maintenance equality and so on: perhaps one should not say it is so fantastic a scenario. Suppose that each time this conflict occurred the medical authorities brought in the husband and said: the foetus has an equal right to life to the parents, not just to the mother, and in order to keep the foetus alive, and be sure that the foetus is alive, we must risk your wife's life but we will be putting your life on the line as well because if your wife dies we will have to arrange for  you to die too, by painless injection, of course, but to die nevertheless, quite definitely. It could be said: there is an area of doubt, there is an equal right to life, but as it is only equal there is very little we can do about it; what do you suggest should be done? If, in that scenario it is a case where the pregnancy was allowed to go on despite severe kidney disease or blood pressure, the husband, too, would have to live for a period of weeks or months with the threat of probable death hanging over his head. This scenario may seem lunatic and ridiculous but is it really so far-fetched? Does it not seem ridiculous just because most members are men? Would all the male Senators feel so comfortably sure that the mother's life would be protected, and nothing would really change in present medical practice, if their own lives were to be laid on the line as well? It is in the light of this kind of thing that I am talking about the prior right of the mother rather than the equal right of the mother. If it was the equal right and prior right of male Senators perhaps they might feel just a little bit less comfortable about saying but of course the medical practices that are going on will continue.
Senator Mullooly said that nothing he had heard or read had altered his views. Perhaps that is only to be expected, but he accuses Senator Robinson of being Euclidean in her dealing with the matter. He referred to the fact that the citizen's right to life is included in the Constitution but it is not specifically stated as being equal to anyone else's, it is just a right to life. How can one construe equal as being equal if one is saying one is construing equal as meaning equal except in the case of present medical practice? Senator Mullooly does not accept that the present constitutional amendment wording will affect anything, but that is not so. There is ample evidence to prove that it has already affected many eminent doctors who are really worried about it.
As far as the Euclidean argument is concerned, perhaps he is complaining that Senator Robinson is actually logical in her argument. This probably hurts a lot because women, of course, are always accused of being extremely illogical and  men are supposed to have the absolute monopoly of logic as far as argument is concerned. In fact, Euclid had at least the merit of logic, as those of us who learned geometry at school have had perhaps, bitter experience of but not so Senator Mullooly. I would suggest that logic is the furthest thing away from his contribution.
I will return to what I said when introducing this amendment, that the reason I introduced it was that I felt that there was a need for clarity. All of us seem to be presuming that in a life-threatening situation the mother's life will, in fact, be preserved. Why then do we object to this amendment if we presume this in this situation of competition, and I am talking about life now, life is the word which is before us and not welfare? It surely cannot be for the feeble reason given by the Minister for Justice, that to accept the amendment would cause delay. This is the least possible harm that can be done. Is a little bit of delay to be weighed on the scales more than an important decision which will affect the safety of mothers, and the life of mothers and children? Or is the objection to my amendment really because the promoters of what is called the pro-life amendment do not actually want to give mother's life priority? Some of the people who are promoting this constitutional amendment  made statements, when challenged on the question of capital punishment, for instance. They were asked why were they not against capital punishment if they were against abortion in this way? They had spoken in terms of innocent human life as though one must distinguish and say, of course the unborn is innocent and the born may be guilty. Perhaps, what they feel is that the unborn is innocent whereas the mother may be guilty in some way and, therefore, a judgment must be made.
If we go into this we will get lost in the mists of theology rather than law or medical practice. If this is the attitude of the promoters of the constitutional amendment, if they genuinely do not want the mother's life to have priority in these situations, at least my amendment, even if defeated, will have made this, perhaps, a bit clearer to the people who are going to vote that when they are voting they will be voting against the clear statement of the priority of the mother's life if they support the constitutional amendment.
de Brún, Séamus.
O'Toole, Martin J.
Higgins, Michael D.
|McGuinness, Catherine I. B.
Robinson, Mary T. W.
Ross, Shane P. N.
Tellers: Tá, Senators T. Hussey and de Brún; Níl, Senators McGuinness and Ross.
 Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Faisnéiseadh go rabhthas tar éis diúitú don leasú.
Amendment declared lost.
Tairgeadh an cheist: “Go nglacfar an Bille chun an breithniú deiridh a dhéanamh air.”
Question proposed: “That the Bill be received for final consideration.”
Mr. M. Higgins: On a point of order, Sir, you have not decided whether you are accepting speeches as to whether this is an appropriate Bill for signature by the President. I presume one is entitled to make a speech on the matter.
An Cathaoirleach: The only question here is that the Bill be received for final consideration.
Mr. M. Higgins: In other words, that it proceed to the Fifth Stage.
An Cathaoirleach: Yes, if the House agrees.
Mr. M. Higgins: It is being opposed by the Labour Party.
An Cathaoirleach: We have not reached it yet. We are simply proposing that the Bill be received for final consideration. Is that agreed?
Mr. M. Higgins: It is being opposed and we challenge a vote on it.
An Cathaoirleach: Does the Senator understand that this is the Fourth Stage, not the Fifth Stage?
Mr. M. Higgins: We are in agreement to allow it to proceed to Fifth Stage and then at that stage I am advising the Cathaoirleach as a courtesy that it is our intention to oppose the Bill.
An Cathaoirleach: It does not arise yet.
Cuireadh agus aontaíodh an cheist.
Question put and agreed to.
Aontaíodh an Chéim Dheiridh a thógáil inniu.
Agreed to take remaining Stage today.
Cuireadh an cheist: “Go rithfear an Bille anois”.
Question proposed: “That the Bill do now pass”.
Mrs. Robinson: I understand that we are entitled to contribute on Fifth Stage.
An Cathaoirleach: We can consider the text of the Bill.
Mrs. Robinson: In deference to the patience shown by Members of this House, I do not propose to speak at length. We have all had a very full opportunity of expressing our views. I will go back to the major criticism of this Bill that was made at the outset and that I believe has been reinforced and strengthened by the debate that has taken place on each Stage, the debate on general principles on Second Stage, the meticulous debate on Committee Stage and the proposed amendments there, and the  even more technical and detailed debate on Fourth Stage, Report Stage, yesterday and today. It is important on Fifth Stage to go back to the basic flaw in this proposal to amend the Constitution. It is the eighth Bill to amend the Constitution. This basic flaw does not occur in any of the other seven. All of the other seven were susceptible and proper subjects for constitutional amendments. This Bill, as is certainly proven by the debate we have had in this House, is flawed and defective. Whatever one's views on the issue of abortion, whatever one's views on the kind of life and framework and political basis we should have in Ireland, this Bill is not susceptible of a proper vote by the people in a constitutional referendum because it is not possible to know what it means. Senator Eoin Ryan admitted that he did not know what was meant by the life of the unborn. He did not know. He was prepared to leave it to some future decision of the Supreme Court. Other Senators on both sides of the House with different viewpoints on the issues involved have admitted that they do not know what the wording means and cannot know until after the popular vote in the referendum. That is simply not a satisfactory basis for a constitutional amendment.
Mr. Lanigan: On a point of order, is Senator Robinson stating definitively that there is a basic flaw or is it her interpretation that there is a basic flaw?
An Cathaoirleach: That is not a point of order. Senator Robinson to continue.
Mr. Lanigan: Senator Robinson said that there is a basic flaw. I suggest that her interpretation is that there is a basic flaw.
An Cathaoirleach: Senator Lanigan will have an opportunity of making his own speech.
Mrs. Robinson: The clearest indication that comes from anybody with any openness of mind who reads the debates in this House or who follows them in the  newspapers is that there is a great deal of uncertainty about the scope and implications and intent of this amendment. It is not clear what effect it will have on existing practices in relation to contraception. It is not clear what effect it will have on existing practices in relation to the treatment of rape victims. Take, for example, the statistics given by the Rape Crisis Centre in relation to current practice of women who go to the Rape Crisis Centre for help and treatment. In the statistics circulated in a booklet from the Rape Crisis Centre last week there is reference to the occurrence of pregnancy as a result of rape. It is in table 9 of the statistics and it was drawn from a sample of 82 women. Of those 82 there was a diagnosis of positive pregnancy in 14, the next category who took the “morning after” pill, 14, the next category is negative, in other words no pregnancy, 31, and the fourth category is not applicable, women either too old or too young to be of child-bearing age and therefore this heading is not relevant, 23. It is quite clear from this debate that none of us really knows whether the 14 who took the “morning after” pill, 14 Irishwomen who took this step after they had been raped, could do this when the constitutional amendment is through. The Senators on that side of the House who expressed themselves as favouring this amendment — that does not include Senator Eoin Ryan — believe that the constitutional right dates from the moment of conception, the moment of fertilisation and, therefore, benefits the fertilised ovum. If that is the case there is a constitutional right to life of this tiny microscopic dot of cell, that certainty is a life — I accept that and I have no problem about accepting it. The problem is whether it is appropriate to confer a constitutional right to life on such an entity and equate that with adult women. If that is the case there is no doubt at all that this will affect contraceptive practices, rape treatment and the present medical approach to treating pregnant women where there is the difficult problem of a possible conflict between the life of the mother and the life of the unborn. I have very considerable sympathy for  the approach adopted by Senator Eoin Ryan that commonsense will prevail, but am afraid the answer to that is that doctors, too, must obey the law. Doctors must adhere to the law and the commonsense must come from us. It is the legislator who must have commonsense, in the matter. I put it to this House on Fifth Stage that, whatever else the debate on this constitutional amendment has revealed, it has revealed that we are greatly lacking in commonsense, that we could put a proposal to the people when we do not know, and will not know when the vote is taken, what it means and we do not know the answers to the searching, important, human questions that have been asked. These are not phoney abstract lawyers' questions. They affect women, in particular women and their relationship to their own fertility cycle, women in the most intimate part of their lives, women who are very largely in Irish society under enough pressure as it is.
I am going to conclude on this because it is not my intention to delay the House further. The basic flaw in this amendment is that it is so uncertain in its scope and so potentially contradictory in its meaning and so potentially damaging to existing practices in the area of family planning and medical treatment that it must not be the subject of abstention by conscientious citizens who do not like this amendment but do not want to feel that they are voting for abortion. They are not voting for abortion. The existing criminal law prohibits abortion and no legislator in this House is suggesting that that be changed. What they are doing and must be persuaded to do is to reject a constitutional proposal which simply lacks the necessary core of clear, precise meaning to be the proper subject for voters in a referendum. It is unique in that and I hope that we can rely on the common sense of the people to save us from this legislative proposal which has taken up so much of our time, and which we have failed to have the political capacity and will to amend.
Mr. Hanafin: I would like to refer to  remarks that were made here yesterday by Senator Higgins. He referred to an attack that was made on him personally in a periodical. I would like to place on record that I would regret very much that an attack of that type should be made on any Senator. I regret particularly that it has been made on him and I wish to be dissociated from that. I certainly would never like to have anything to do with that type of remark.
It seems to me that all of us who reject the idea of abortion ever becoming legal should urge the adoption of this amendment by a large majority. If we or the country were to reject the amendment this would signal clearly that in May or June of this year, 1983, we were not prepared to extend constitutional protection to the unborn child. It is certain that such a verdict would foster an attitude conducive to the acceptance of at least limited abortion. I am absolutely certain of that. I emphasise that I am not suggesting that anybody here is pro-abortion. I do not believe that people are pro-abortion until such time as they tell me they are pro-abortion. I am merely dealing with what I believe will happen if this amendment is beaten.
On the other hand, a vote for the amendment in this House and in the country clearly signals our rejection of the idea that the direct and intentional killing of life before birth has ever been the right solution in any human situation. The purpose of the amendment, in the words of the Minister for Justice in his Second Reading speech in the other House, is to ensure that what is called legalised abortion will not become a feature of our law or of our society against the wishes of the people. The amendment achieves that objective simply and effectively and without threatening anyone.
We all know, and it is not necessary to say it, that the Constitution enacted by the people can be changed only by the people. Theirs is the constitutional right to be the final decider of this or any other question in that regard. Everyone knows the present necessity to enshrine in that Constitution the right to life of the unborn was not envisaged 45 years ago. Few indeed could have envisaged the  extent of the deterioration of human respect for human life, born or unborn, which we are now witnessing on an almost universal scale in this so-called enlightened last quarter of the twentieth century. One of the reasons the amendment is positive rather than negative is to ensure that the declaration of the right to life of the unborn must be respected and must be respected, for example, by the European Court of Human Rights.
As has been emphasised by all lawyers with a basic knowledge of European law, the right to life of the unborn can be insured against attack only if that right is specifically protected in the Constitution. The wording of this amendment protects the unborn against all comers unless the people should decide otherwise.
Now that this amendment is about to be passed by both Houses and presented to the people, all the arguments put forward in both Houses as to why a referendum should not be held or why we should have a different amendment are totally and completely irrelevant. Only one amendment is going before the people. This amendment would not be possible were it not for the support given to it by members of the Fianna Fáil Party, members of the Fine Gael Party and members of the Labour Party. It is no longer a Fianna Fáil amendment.
Mr. O'Leary: Hear, hear.
Mr. Hanafin: If it is accepted by the people there is no victory or defeat for any one political party. This amendment could not have passed through without the support of members of the three main political parties. There is no victory or defeat for any one of the major political parties if this amendment is passed. It is not a political issue. It is a human rights issue. Let it be clearly understood that if it is passed by the people it can only serve the case for the unborn, but if it is defeated it will not be a case of things being as they were previously. It can only weaken the case for the unborn. It is a double-edged sword. If it is defeated it will weaken the case against any powerful pro-abortion lobby that I believe will inevitably arise in the future. It is a  double-edged sword. If it is accepted it strengthens the case for the unborn: if it is defeated it will weaken the case for the unborn.
Mr. O'Leary: It is not good enough to say that because clearly an amendment will now go before the people the situation will resolve itself into all those who are in favour of a constitutional amendment supporting this amendment. I do not believe that to be the situation at all. As I said at the outset, there is more than an element of moral blackmail in this movement. You cannot set up the situation whereby you first set about having an amendment passed by the Dáil and then put that amendment to the people on the basis that it has been put here this evening. That is not the full story.
I am in favour of an amendment and against abortion but I am not in favour of this amendment. I will not support it and I will encourage other people not to support it. I do not share the view that there is in the present generation a lesser respect for human life than there ever has been because I think there is a greater respect for human life now than there ever has been throughout history.
Mr. Hanafin: Where has the Senator been for the last ten years?
Mrs. McGuinness: The Senator should read his history.
Mr. O'Leary: I did not interrupt Senator Hanafin. We have moved out of the dark ages. It is true that matters like abortion have become institutionalised in other countries, but to a large extent that was the institutionalisation of something that always existed. It is true to say that the quality of human life has improved and is continuing to improve. I do not share the negative view that the world is on the moral, downward trail because I believe in the dignity of human beings and their increasing self-awareness. While we have individual problems, I believe that that dignity has meant a greater respect for human life both in this area and in areas in general.
It is not correct to say that any constitutional  amendment, even the one I support, will guarantee our Constitution against international challenge. That problem cannot be solved within the confines of this constitutional amendment or any other constitutional amendment. Anyone who says that it can is misinforming the people. This constitutional amendment will not have any greater status when we have to decide whether to continue membership of organisations who might interpret the rules of their organisations in a different way. The existence or non-existence of this constitutional amendment is in this regard not relevant. It is not correct to say that its enactment by the people will guarantee us against the very real problems which I envisage over the next few decades in this area.
Senator Hanafin has correctly analysed that this Bill could not have reached the stage it has without the support of all the parties to a greater or lesser extent in the Dáil and Seanad. Senator Robinson and others — but particularly Senator Robinson — consistently put forward the point of view in this House that the Labour Party were in some way in a unique or different position with regard to this matter.
Mr. M. Higgins: By not giving an irresponsible commitment.
Mr. O'Leary: The Labour Party's performance in the other House was as deserving of condemnation — or of praise, whichever your viewpoint — as was the performance of my party and the performance of the main Opposition party.
Mr. M. Higgins: The Labour group in the Seanad consistently opposed every Stage of this——
Mr. O'Leary: I accept the Labour group in the Seanad——
Mr. M. Higgins: Let the record speak.
Mr. O'Leary: Yes. The record is right, the Labour group in the Seanad have  consistently opposed but it was an opposition that made no difference.
Mr. M. Higgins: It is not a cynical opposition.
Mr. O'Leary: Where we needed the support of the Labour Party was where it mattered most——
Mr. M. Higgins: The responsibility of Senators is to this House and not to the other House.
Mr. O'Leary: ——and where 50 per cent of them let us down. Some of our own members let us down also but 50 per cent of the Labour Party let us down.
Mr. M. Higgins: Less than 50 per cent.
Mr. O'Leary: All right, less than 50 per cent.
Mr. M. Higgins: Thank you, Senator, and if the Senator wishes to abuse the reference to the other House he should at least be accurate.
Mr. O'Leary: I do not wish to abuse the reference.
Mr. M. Higgins: The Senator has just done that.
An Leas-Chathaoirleach: Senator O'Leary to continue.
Mr. O'Leary: I want to state clearly that the position of the Labour Party has been as convoluted and contorted as our own.
Mr. M. Higgins: That is dishonest and inaccurate.
Mr. O'Leary: It may be inaccurate but it is not dishonest. Only the Senator can judge whether it is accurate.
Mr. M. Higgins: We have already accepted its inaccuracy. The Senator misquoted the figures of the Labour support in the other House.
Mr. Lanigan: The Senator suggested it was inaccurate and dishonest.
Mr. M. Higgins: And then withdrew it.
Mr. O'Leary: It was seven out of 15. I doubt that I will have the condemnation of——
Mr. M. Higgins: It is not seven out of 15.
Mr. O'Leary: It was. As the person in my party charged for the responsibility of looking after the passage of this Bill through the House and the interest of the Fine Gael Party in that regard, I found the position of the Labour Party quite extraordinary. I owe it to my colleagues in the Fine Gael Party to say that it was the judgment of the majority of members of our party that the best interests of the country would be served by the holding of the referendum at an early stage. We recognised that the referendum was within the power totally of the other House and that our job was to examine the legislation and to try to impress upon those who had the power and the authority to prevent its enactment the importance of sharing our viewpoints. There are only two groups that could have done that, one is the majority in Dáil Éireann and the other is the people. That is the reality of the situation as far as the majority of the members in the Fine Gael Party are concerned. They believe this. I have never believed that it is an unreasonable or an immoral position to take. Senator Robinson said earlier that she would like to express her disgust at the possibility that a political party that has the power to delay a Bill should refuse to delay it by their abstention. I wish to express my disgust at the fact that a political party that had the possibility of defeating the Bill in another place refused to do so and that is a reasonable position for me to take.
Mrs. Robinson: The vote would not have added up that way.
Mr. O'Leary: I accept that the change of heart of the seven or eight members of the Labour Party, whatever the right number is, would not of itself have changed it. I put equal responsibility on those of my party who voted in the other House.
Mrs. Robinson: Equal?
Mr. O'Leary: That is all I am saying.
Mr. M. Higgins: Why does the Senator not suggest that they were intimidated by the moral entrepreneurs who are led by his party?
Mr. O'Leary: I do not know to whom the Senator was referring when he said “they” were intimidated.
An Leas-Chathaoirleach: I do not think that you can have this chit-chat. Senator Higgins and any other Senator will have an opportunity to reply.
Mr. M. Higgins: That is correct.
Mr. O'Leary: Therefore, the position we have adopted is in the best interests of the country and there is nothing inconsistent in us now advising the people not to support this amendment even though there are some people in our party who will be advising the people to support it. We admit that our party were badly divided on this issue. It is to the credit of the party that we make that admission and it makes me very annoyed when other parties pretend they were not so divided, whether they do so by refusing any discussion within their party or whether they do so by failing to recognise a number of people who voted in the other House.
Mr. Lanigan: That is a convoluted statement.
Mr. O'Leary: Then maybe I should unconvolute it.
Mr. Lanigan: Put a full stop there.
An Leas-Chathaoirleach: Allow Senator  O'Leary to continue without interruption, please.
Mr. O'Leary: All I am saying is that the recognition in the Fine Gael Party that there were divided views on it is more honourable than to put forward a united face as the Fianna Fáil Party have done and where the matter was never discussed properly by them.
Mr. Lanigan: Of course this gentleman is getting his thoughts from above. If Senator O'Leary had attended any meeting of the Fianna Fáil Party maybe he could speak authoritatively but since he has not done so, I do not think he can.
Mr. O'Leary: Finally, I am indebted to the Minister of State who made a list, at short notice, of the number of people who voted against our amendment in the other House who were members of the Labour Party. It appears there were seven.
Mr. M. Higgins: How clever of the Minister. He might want to put in the number of women who benefited from therapies last year.
Mr. O'Leary: That is nonsense.
Mr. M. Higgins: It is not nonsense. It is relevant.
Mr. O'Leary: I have listened here to my party's position being attacked day after day. I have done so patiently, I have rarely, if ever, interrupted Members when they were doing so, in fact any interruption I made was not on such an occasion at all. It is only reasonable that I would expect when I am putting the boot on the other foot that the people would sit down and listen and think about what I am saying and say to themselves maybe he is right, instead of constantly interrupting me and showing their lack of generous spirit by denying to me the silence which was granted to them when they were attacking me. In all these circumstances, the position is that on the last Stage of the Bill, if there is a division  the Fine Gael Party will do precisely what was done previously and will abstain.
Mrs. McGuinness: I will not keep the House long. I had not intended to speak at all on this Stage, I had merely intended to vote against the Fifth Stage because I have said everything I wanted to say about the attitude of the different parties and about the actual wording. I must, in conscience, protest at the kind of thing that has been said by Senator Hanafin. I mentioned earlier the sincerity of the contributions of members of Fianna Fáil and I specifically mentioned Senator de Brún and Senator Fitzsimons and I would also include Senator Eoin Ryan. However, I do not think I want to extend that to Senator Hanafin. I am disgusted and shocked at the contribution which he has made on Fifth Stage in which he has deliberately tried to reduce this again to a question of saying that anyone who opposes this amendment is a pro-abortionist and is trying to weaken the protection of the unborn child. That is what he said and that is what he meant. I protest vigorously against it. He was trying to clothe it in polite words but that was what he was trying to do.
Mr. Hanafin: I did not say that.
Mrs. McGuinness: I must in conscience stand up and protest against it. It is a disgrace to the debate in this House that after all that has been said and after the serious and sincere debates that have gone on, we should end up with this kind of smear campaign. It seems to destroy the whole atmosphere of the debate that we have had.
Mr. M. Higgins: I shall be very brief. I wish to pay tribute to Senator O'Leary for the subtlety with which he has defended a difficult position on behalf of his party. He will know when he reads the record of the previous Stages that I did not interrupt him at all. It is important that the record shows that the Labour group in the Seanad, joined in so many divisions by the university Senators, voted on amendments which would have protected women, which exposed the  absurdity and the danger of this amendment to the Constitution.
I want to invoke one principle which is important at this final Stage. I think that most people who have studied constitutions agree that constitutions in general deal with matters about which one either can or should be certain. For example, the great European expert on constitutions, Giovanni Sartori, refers to the aspect of garantie as the aspect which is common to constitutions; it is in matters in which you can guarantee or should guarantee. All the evidence that we have heard in speeches on both sides of this House tells us that we are moving into an area by way of referendum in which no certainty is possible. It is appropriate at this stage to suggest that we should compare our exercise with a possible hypothetical exercise as has taken place appropriately in some parts of the United States where people held a referendum on whether Charles Darwin was right or wrong or whether Darwin should be excluded from the school curriculum, whether you wanted to drive American school children back to the Book of Genesis. Let us be clear, that is what this amendment invites us to do and not in a backward oriented sense only. It has been demonstrated at every stage of the debate that it is not a casual ignorance of certainty; it is not a casual affair with the past, it is almost a casual abandonment of assurances in relation to certain medical practices that were available to pregnant women or women who might become pregnant. I am grateful to Senator Hanafin for one thing. Twice during the course of this debate he dissociated himself from some of the unsavoury tactics of the people who are now going to run this campaign in the country.
I ask another question about that. Does this mean that I have a guarantee from him that members of his party will not take into their hands the dishonest literature of these organisations? Do I have a guarantee from the other large party, who I understand were criticising my party just a few moments ago, that they will not do as they did in my constituency at the last election and take literature from unrepresentative groups  who are not honourable enough to put the addresses of their printers on their literature, and to distribute it to drive me from the Dáil? I am careful in the way I place that on the record. That happened in my Second Stage speech, I identified them, the people who ran in and out of cars so that they might not be seen.
In complete contradiction of what Senator Hanafin has to say, this debate is not now over. The debate that took place in this House in particular is of relevance to the public. It is not a matter of the Dail having considered certain proposals, words that were not explained, many of us having sat here through different stages of the debate in the Seanad until Report Stage when several Senators seemed to have been provoked to offer their opinions and their definitions in both English and Irish. It is not a matter of saying, “Look, we have rid ourselves of this debate and now we are off to the public with the original wording and that it is a simple matter of yes or no.” If we do that it is a celebration of ignorance and a matter of dishonour to this House. The debate in this House has been better than that in the other House.
As a political scientist and a historian of these institutions, and as someone who has written about the Seanad, I want to assert the right of the Seanad to discuss its own affairs. Our responsibility here as elected representatives for university constituencies, those people who have been nominated and elected from the different panels, is to this Chamber. It is not to come in here with a shadow cast over our options by another House. It serves the future of the Seanad very badly if you stand up and say, “Well, we can only decide this one way or the other”— positive or negative, depending on the options that are allowed either in a previous consideration by the other House or in a potential future consideration by the other House. This devalues the Seanad. We need to be very careful in this matter. Our responsibility is to the arguments and to the votes that take place in this Chamber. I should have congratulated the young Minister of State before now. I wish him well in everything he does. He has joined with others in  saying that our prospects are very bad in the other House if we reject anything here. This is the argument but I would remind him of our distinguished predecessors, people like W.B. Yeats and others in the twenties who felt that it was important to make the case on divorce and that this House enabled them to make such speeches despite the fact that they were to be ignored in their claims for most of the life of this so-called Republic.
The Seanad has rights of its own; it has the right to have a debate. It has witnessed a marvellous debate in which again and again and again the rights of women, the dangers to women have been asserted and people have counter-asserted a form of words about which many of them have said they have reservations. The very best defender of the form of words has said, “Look, it would not have been my decision to start.” Now we are invited by Senator Hanafin to imagine that our debate need never have taken place. He suggests in a kind of apocalyptic vision that we are at a stage in the world's history when we need to do this, perhaps, I do not want to put words into his mouth, not only for Ireland but for the world, in which respect for life has declined.
We are not amending the Constitution to assert our neutrality, we are not doing anything that will lessen the threat of war, we are not doing anything that will celebrate the right to life in the Third World, we are not doing anything to give men and women equal rights in the Constitution. We could save ourselves an immense legislative hassle by saying that it is wrong to discriminate on the basis of sex and put that into our Constitution. We are not doing that: what we are doing is that we are sending, as I described it on the previous Stage a mumbo-jumbo of words using concepts imported from abroad by people who want to use our Constitution as an exercise for themselves. We are not doing anything for life. We are not doing anything to eliminate threats to life but we are doing something, and it it the most important thing  that I have to say, that is profoundly threatening to the lives of women.
Remember that even the best speeches from the other side of the House did not deny that from the moment this amendment to the Constitution is passed the position of women is changed. It has been equated with something nobody has been able to define in either language. Senator Robinson, to her credit, for more than a decade has asserted the rights of women in this Chamber. She has my admiration and respect for that. But it goes further than women being invited to protect themselves by voting against this amendment and by mothers protecting their daughters by voting against this amendment. Anyone involved in human sexual relationships, men who care, owe it to Ireland to reject this amendment. I do so in the interests of life, because my definition of life is not a constricted, narrow, fearful imported notion that we are being threatened from here, there or everywhere. The woman that one sleeps and lives with, who bears our children, is entitled to the rights under the Constitution that even exist at the moment and our appropriate exercise should be in amending the Constitution to create equality for women rather than disgracing ourselves at this stage by allowing a form of words to go to the public, about which we cannot be certain in any positive respect, but about which all the negative respects had been stated by expert opinion, that it materially damages the position of women.
I have not wanted to go on and on speaking about this subject but, with respect to Senator O'Leary, who I believe has sought to justify a very difficult position in this Chamber, how can you, I repeat, acknowledge the danger to the life of women on the one hand and then sit back in your seat?
I was in the position when I was a Member of the other House, and Senators spoke often about the other House, and I chose and I choose now, if I was never to occupy a seat again in that other House, that it is more important to be certain in relation to what one does in relation to the rights of women than it is to be pragmatic. It is just not good  enough to take the decision to sit in your seat and say there is an elaborate justification for this. It belongs in the other House and in that other House seven or eight members of the Labour Party let us down.
Let us call a spade a spade. I know the intimidation. I know the pressure that people who want to come back here to earn their livelihood as Dáil representatives are under in this matter. I have known it since 1971 when, for example, the party opposite would not allow to go into print a Bill in relation to matters of family planning. I know all the cowardice that is induced by the pressure of the people in constituencies from different majorities. But it is too much to suggest that the position of the Labour Party in the Seanad is extraordinary. It is very simple. The Seanad group of the Labour Party have consistently voted at all stages against this measure because we discussed it and found it to be anti-woman and, I say this lest it be patronising, we were glad to walk in behind initiatives taken by other Senators from the university constituencies. I agree with Senator O'Leary on one important point. It is frankly disgraceful that the Fianna Fáil Party should just keep their heads down on this matter. I know the Fine Gael Party agonised about attitudes it should take, but the idea that the Fianna Fáil Party should, for example, discuss the matter briefly and let it off to the people, is an invitation to a seedy version of ourselves that at best we will have a constitutional referendum which will sit there to cripple us.
We were invited by medical practitioners to leave them alone and allow them to practise their ethics. The day we pass this we are rejecting their request and that is very important. We have made a matter that was previously a matter of personal medical ethics a matter of popular choice in a referendum. It would be fine to do this in relation to whether a new star had been discovered, but we are doing it about the bodies and lives of women.
There is nothing extraordinary about the Labour Party's position on this. It is very consistent. It has been argued all  through. If you wanted to block this and send it back to the Dáil you voted against it in the Seanad. I find it very hard to accept that you can have some other kind of convoluted position, that you can say something like, “Well, I am sitting here not expressing an opinion on it and I am going to invite the public to vote against it, but of course I am not going to campaign either.” What does that mean? I know what it means. It means that the very people whose functionaires wanted to remove people like myself from Dáil Éireann had not the courage to campaign publicly against this anti-woman measure.
Now I speak personally and not as acting leader of the Labour group. I intend to oppose this measure because it is anti-woman. But, more importantly, I believe it is an abuse of the constitutional alteration process and I invite those who at one time said that they wanted to invite us to a new version of the Constitution which would have included Dissenters, Protestants and Catholics to say what they are going to do. Are they going to include women in their crusade? Will they be involved and with what ashes in their mouths can they ever again reinstitute a crusade? I say that with no pleasure because across from me are a group of people who would have tacitly supported tribalism in this country rather than pluralism. The Labour Party's position should not be misrepresented. Their position at every stage was that the origins of the amendment had come from an unrepresentative demand and that there was no need for it. It followed through to identify specific dangers. Despite our general opposition to the demand for this referendum we went in to support the university Senators where they suggested specific amendments that would in fact have mitigated the danger of passing it.
Through you, I speak to Senator Hanafin who condemned the tactics of the people I have been attacking myself. I repeat this. Does this mean that in the course of the whole referendum we will have a proper debate? If we have a proper debate, surely it must include the very fine contributions from all sides that  were made in this House rather than some little tribalistic dance that puts women further back in Ireland. That is the danger. I remember the time when I found the organisations with the leaflets, who printed them in an unknown place and had them delivered to a lady who did not want to identify herself, who gave them to another woman who distributed them outside a church and tens of thousands of them were distributed. Members of the Fianna Fáil and Fine Gael Parties rushed up and took bunches of them each saying, “Give me a bunch of those”. Is that what we are going to have at the referendum?
I hope that in Senator Hanafin's comment and his condemnation of the tactics that has been exposed by myself in the paper that we are going to have a referendum that will be about issues. I hope that the referendum will not be soon. I hope that every woman, but more importantly everybody who believes in equality, who believes, like I do, that a woman should not be penalised by her sheer ability to bear a child, will have an opportunity to consider this debate and the debate in the other House. It is not a matter of ducking this and ducking that. The reason we have voted against all Stages of this Bill is that we have been for equality and one of the most primary forms of equality is equality between men and women.
Mr. E. Ryan: I want to clear up a few misapprehensions. First, Senator Higgins' condemnation of some of the pressure groups he mentioned would have been a little more convincing if he had mentioned the pressure groups on the other side who are guilty of tactics which can be condemned just as easily. He has mentioned Senator Hanafin not taking responsibility for things that have been done by certain groups. I hope Senator Higgins will give the same undertaking not to take responsibility for some of the activities of those pressure groups who have to a very large extent been the cause of the initiation of this debate in which we are taking part today.
I would like to say two things. Senator  Higgins said that even the best speakers on this side of the House admitted that the lives and welfare of women would be affected, would be undermined by this constitutional amendment. I accept with all humility the fact that I must not have been one of the best speakers on this side of the House because quite clearly I did not admit that. In all of the contributions I made to this debate I expressed my conviction, my belief, that this constitutional amendment would not adversely affect the lives or welfare of women. That is my belief. Obviously Senator Higgins does not agree with it but I want to make it quite clear that I did not express that view; in fact, my belief was quite the contrary.
Secondly, I want to comment on what Senator Robinson said. She misrepresented me slightly — I do not mean deliberately so — when she took certain words out of my mouth without putting them in context. She said that this constitutional amendment should not be put before the people because it was so vague and uncertain and that I admitted I did not know what “unborn” meant. By that, I think, she meant that I was not in a position to define exactly at what stage a foetus was a person and was deserving of the protection of the amendment.
What I did say was that this question was a question of great complexity, that it was open to discussion, that it was constantly being discussed in the light of new views and new discoveries and so on and that to attempt to define in the Constitution exactly what constituted an abortion would not only be extremely difficult but would be undesirable because the views about that would change over the years and that the only effective way was to allow the court to decide exactly what constituted abortion in the light of current medical views. This may be in a sense saying that the position is uncertain but it is the only proper way to deal with it. To put something into the Constitution that would have to be amended every time there was a change in medical views would obviously be an impossible situation.
Having demanded definition in regard to this amendment, Senator Robinson  went on to use words to the effect that the existing law dealt with the question of abortion adequately over the years, but blithely ignored the fact that existing legislation never made any attempt to define what abortion meant. Existing legislation did exactly what I said should be done in this case, it left it to the court — at any given time and in the light of current medical opinion and public opinion — to decide in all the circumstances what would constitute abortion. This is the proper way to deal with this. It is not uncertain, it is the only way in which it can be done.
Mr. Hanafin: On a point of order, having listened to what Senator McGuinness said I feel there is a misunderstanding about remarks I made and whether my explanation is accepted or not I can only give it. I have thought about what I said, I do not know what created the misunderstanding but I can only assume at this stage that it was when I was finishing up and when I said that if this amendment is passed it will strengthen the case for the unborn and if it is defeated it will weaken the case for the unborn. If that is the remark that caused the misunderstanding I am sorry but I happen to believe that to be true. In fact I went to great pains when speaking to say that I did not believe that anybody was pro-abortionist on the other side, I said I would not believe it until they told me that they were. I am sorry about the misunderstanding because I tried to avoid all that during the debate. I cannot be responsible for somebody else's interpretation of my remarks.
Mr. McDonald: This has been an extraordinary debate in many ways and we in the Fine Gael Party are in a difficult situation. For my own part and, indeed, I am sure I can speak for the majority of my colleagues, had there been any hope of there being a different vote in the other House or if there had been any possibility of an all-party committee to re-examine this matter we could have sent it back. However, I do not think that any useful purpose would have been served and I  take issue with Senator Higgins on that one point.
If one accepts, as I do, the Preamble to our Constitution then there is no need for this or any amendment to the Constitution to bolster the moral standing of the Irish people. I am genuinely fearful that this constitutional amendment, if enacted by the people, will do violence to Irish family life and possibly force young Irish wives who cherish their children to travel abroad for life-saving operations. I want to make it abundantly clear that if an amendment had been made providing for medical care for Irish mothers, and if that had been included in this measure, I would have been happy to vote for that and to vote for the measure before the House.
As it now goes to the people, my personal position must be on the side of the Irish family and on the side of the Irish mothers. On referendum day I will certainly find myself voting against this measure. Throughout this debate in the Dáil, in the Seanad and in the public press there have been absolutely conflicting ideas from all the experts, from the legal people, the medical people and the theological people. It is very difficult to arrive at a conclusion. There is so much ambiguity in this that I think one must come out very positively on the side of the Irish mothers and give them the protection I believe they require.
Mr. Fitzsimons: I have two very brief points to make. The first is with regard to Senator O'Leary's contribution. He spoke about a greater respect for life now than at any time in our history, and also he said that the moral fibre of the nation was as healthy now as at any time in our history. I would not disagree with that but this amendment did not originate on the basis of a lack of respect for life or the moral fibre of the people at the present time. As I understand it, the reason this came about was that legalised abortion could be imposed on the people by a decision of the Supreme Court or by the European Court. That was the sole reason for the amendment. It was not related to any criticism of the moral fibre of the people. Senator Higgins said it was  disgraceful that the Fianna Fáil Party should keep their heads down in this matter but the Fianna Fáil Party have not kept their heads down in this matter.
Reference has been made to the block vote of the Fianna Fáil Party, that we are all unanimous here in the Seanad. The question was raised whether some Members did not feel otherwise about this question. I would ask the same question to the members of the Labour Party. The same situation applies to them. Did  nobody in the Labour Party feel that they should speak otherwise than in the block way they did?
Mrs. Robinson: No.
Mr. Fitzsimons: Senator Robinson says no. The Fianna Fáil side will say no as well. Finally, Senator Higgins referred many times to this amendment as being anti-woman. I want to put it on record that it is not anti-woman, it is anti-abortion.
Cuireadh an cheist.
Rinne an Seanad vótáil: Tá, 14; Níl, 6.
The Seanad divided: Tá, 14; Níl, 6.
|de Brún, Séamus.
O'Toole, Martin J.
|Higgins, Michael D.
McGuinness, Catherine I.B.
Robinson, Mary T. W.
Ross, Shane P.N.
Tellers: Tá, Senators T. Hussey and de Brún; Níl, Senators Magner and McAuliffe-Ennis.
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
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