Speech at second Stage of Protection of Life During Pregnancy Bill 2013
I thank all the Deputies for their contributions throughout this very good and extensive debate, which was very respectful to all the positions that have been articulated. I did not hear any attacks by any colleagues on the character of others who have taken a different view, as was suggested earlier. All the contributions have been measured and there has been a very good analysis of the Bill and the constitutional context in which we operate. T
he Dáil has done itself proud in the level, nature and content of the debate. It could not be suggested by anyone that this Oireachtas has failed to debate the issue or consider all the views, and there have been at least four occasions I recall in the past year or so when the issue has been quite rightly debated on the floor of the Dáil. The health committee has also treated the matter on two lengthy occasions, and the issue has been well ventilated, with a good quality of debate. It is important that this is so as that is what we have been expected to do in this Chamber.
As has been indicated since the intention to legislate in this area was first announced, the sole purpose of the Bill is to make provision for procedural rights for a pregnant woman who believes she has a life-threatening condition so that she can have certainty as to whether she requires or is entitled to this treatment or intervention. The purpose of the Bill is not to confer new rights for termination of pregnancy but to clarify existing rights. It will make existing rights actually available; there is little point in a constitutional point that cannot be exercised, and it is arguable that the position has been that a right has existed that could not be exercised. This Bill is setting out a procedure for the exercising of an existing constitutional right, and we are doing so within the parameters of the constitutional provisions that pertain, and particularly those as interpreted by the Supreme Court in the X case in 1992 and in order to implement the judgment of the European Court of Human Rights in the A, B and C v. Ireland case.
Legislating with the X case is a serious and legally complex issue but this Bill strikes a balance between providing an accessible procedure for establishing whether a pregnant woman might undergo a medical procedure which will end the life of the unborn and ensuring that safeguards are put in place for the protection of the unborn, where possible, or in the precise terms of Article 40.3.3° where practicable.
I will address some of the main issues raised by Deputies during the debate, although I will not have the opportunity to address all the matters. One of the most common reasons for opposing this Bill is the fact that it includes suicide as grounds for permitting termination of pregnancy. The reality is that these grounds are already included in our law. In the course of the judgments in the X case in 1992, a majority of the members of the Supreme Court specifically recognised suicide as a lawful basis for permitting termination of pregnancy if it were established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother that could only be averted by the termination of pregnancy. This principle was upheld, as many colleagues have stated, in two subsequent referendums on the issue.
The debate has been very interesting and informed in respect of the role of the Oireachtas. There has been much debate on whether the Oireachtas is obliged to legislate and the extent of that obligation etc. Many speakers referred to the issue but many have made the point in an astute manner. For example, Deputy Durkan, who spoke a few minutes ago, considered the role and function of the Oireachtas vis-à-vis the Supreme Court and the people, who are the ultimate arbiters and the owners of the Constitution. The people enacted their Constitution in 1937, amending it in 1983 before a question arose in 1992 as to the precise meaning of that amendment. The Supreme Court, doing its duty, set out what the amendment’s provision, with Article 40.3.3° actually meant. The role of the Supreme Court is to interpret the Constitution where there is doubt or a question arising as to the precise meaning of the terms of the Constitution. Neither the Parliament nor the Government does this but where there is an issue of interpretation as to the meaning of a provision in the Constitution, the work is done by the Supreme Court. That is what was done in 1992.
People have often wondered if that was the end of the matter but it is not. If there is unhappiness with the interpretation set out by the Supreme Court, the people can be consulted again. To put it at its simplest, we showed the people what was put in the Constitution in 1983 and what the Supreme Court indicates that it means before asking the people if they want to revisit the issue. The proposal was to re-word the 1983 provision in a manner that might find favour with the people invited to vote on the potential amendment to the previous 1983 amendment. This was done not once but twice; it was done in 1992, shortly after the X case judgment, and again in 2002. On neither occasion did the people decide, in their wisdom, to exclude suicide as a ground for lawful termination of pregnancy in this jurisdiction. The opportunity was afforded to the people to make that decision and they declined to do so.
The position is that with the court having given its interpretation and with the people having decided not reverse what they decided in 1983, we are left with what remains our law, and there can be no doubt in that respect. Whatever other issues we can debate or disagree about, there cannot be any objection to the simple proposition that the Irish Constitution – the supreme and fundamental legal document of the State – allows for lawful termination to occur in circumstances including suicide.
As we heard from many people in the debate and with the evidence so often referred to arising from the health committee, suicide in pregnancy is real. We should all ask a question when the distinction is drawn so often between a physical threat and one arising from suicidality; does not the risk of death by suicide constitute a real risk to life? It is almost crass to put it in those terms but it must be put in simple terms. Somebody’s life can be at risk from suicide, and although I respect those who make the point, I cannot understand how people have said in this House and elsewhere that although there is no difficulty with sections 7 or 8 and that the physical risks described therein are real, they cannot bring themselves to see the risk being addressed in section 9 as a risk at all.
That is a fundamental issue to which people have not faced up. Given that we accept that death through suicide constitutes a risk, I do not understand why people can feel there is a rationale for having a different view of that risk from the view they hold of the other risk, which is to allow these circumstances to pertain in our law. I accept that it is rare, but it does happen and when it does, it is always a tragedy.
Many have argued against including in the Bill a risk of suicide on the basis that a termination of pregnancy is not a treatment for suicide, which phrase has come up so many times. We heard from eminent psychiatrists during the Oireachtas Joint Committee on Health and Children hearings who informed us that there was no definitive treatment for suicide and that seems to be so. It is constantly used in the House as an attack line on section 9 that it does not stand up because abortion is never a treatment for suicide. I accept that abortion is not a treatment for suicide. The point is that what we are doing in the Bill is legislating for that very small but real possibility that terminating a pregnancy is necessary to save a woman’s life. These circumstances include a risk of death through suicide and must include it.
Deputy Michael McGrath addressed this issue very carefully and closely and finished off with a rhetorical question. I hope I am not misquoting him, but I get the sense of what he said. When he spoke about section 9, he asked whether it was ever the case that a termination of pregnancy was the only way to save a woman’s life. I think that is almost precisely what he said and I do not think I am being unfair to him in that regard. It was a rhetorical question to ask whether it was ever the case that a termination was the only way to save a mother’s life in circumstances where there was a risk of suicide. With respect to him, the way we must pose that question as legislators is to ask whether we are saying it would never arise or whether it could be concluded that it would never be so.
If we are to be fair and reasonable in this debate, the way the question ought to be phrased is if we are saying it would or could never arise. I remember that Dr. Rhona Mahony made this point in the Seanad.
There is another aspect I have genuinely had difficulty in understanding. This is a genuine objection I have because it has never really been properly explained to me. It is the notion that if, it enacted, section 9 will have the effect of normalising suicide. I genuinely cannot understand how it could reasonably be suggested this would follow. We have a provision in our law that everybody accepts is entirely limited and restricted. I cannot understand how the rare and restricted circumstances covered by a very rigorous process set out in the Bill, whereby a woman who finds that she is suicidal and seeks to have a termination must face the very rigorous requirements set out in section 9 and is or is not certified as having a real and substantial risk to her life that can only be averted by a termination, would have the effect of normalising suicide. I simply cannot understand this. The point has been made and repeated, but it has never been explained to me.
The Government is aware that concerns have been raised about whether it could be possible to insert gestational limits on the carrying out of the medical procedures mentioned in the Bill. It is important to stress that the proposed legislation only covers situations where there is a real and substantial risk to the life, as distinct from the health, of a pregnant woman which may only be averted by a termination of pregnancy. To put the matter plainly, it will only allow a pregnancy to be terminated where it is judged that a woman may otherwise die. I do not accuse Deputy Peadar Tóibín of this, but others have posited quite grotesque scenarios relating to late term pregnancies that might arise in very rare circumstances and which I think would almost certainly never arise, although there can be no certainty. If they ever did arise, they would be very rare and the Minister for Health was unfairly represented as having a particular view in this regard. He and I are of the same view, as reasonable people would be in any analysis of the Bill, that such circumstances would be extremely rare. If they did arise, let us not forget what also might happen in that circumstance, namely, a woman may die if this procedure is not afforded to her. There is very little reference to this fact when that particular circumstance is being addressed.
I will repeat a point made before, that while a woman has a right to have the pregnancy brought to an end, the provisions included in the Bill are intended to ensure that in circumstances where the unborn may be potentially viable outside the womb, doctors must make all efforts to sustain his or her life after delivery. It is very important to recall the definition of “reasonable opinion”. Sections 7 to 9, inclusive, require doctors to give a reasonable opinion. “Reasonable opinion”, as defined in the definition section of the Bill in respect of a medical practitioner or a review committee, means an opinion formed by the practitioner or committee in good faith which has regard to the need to preserve unborn human life as far as practicable. Doctors must have regard to the need to preserve unborn life as far as practicable, which is exactly what the Constitution states.
I assure all Deputies that, as drafted, the Bill prohibits the killing of a viable foetus. Including a reference to viability would not provide for further clarity in that respect because pregnancies become viable at different points in their development and the clinical foetal assessment would still be required, as is the case. Let us remember what the test is. There must be a real and substantial risk to the life of the mother that can only be averted by the procedure. I know Deputy Charlie McConalogue raised this question when he, quite reasonably, pointed out that there were gestational limits in other jurisdictions with quite liberal abortion laws. That is precisely the point. They are jurisdictions with liberal abortion regimes, but that will not happen here under this legislation. We will not have a liberal environment on foot of this legislation; far from it. Therefore, we are not comparing like with like.
Some Deputies have expressed concern about the potential criminalisation of pregnant women. I wish to clarify that a woman can be prosecuted for an unlawful abortion under an extraordinary provision in the Offences Against the Person Act 1861 which is still on our Statute Book. If found guilty a woman “shall be liable to be kept in penal servitude for life”. The proposed legislation does not create a new offence for pregnant women; it brings the penalty for this offence in line with current parameters, in other words not exceeding 14 years instead of life.
I certainly recognise the potential criminalisation of a pregnant woman is an extremely difficult and sensitive matter, to put it at its mildest, but this provision reflects the State’s constitutional obligations arising from Article 40.3.3° and the constitutional protection of the life of the unborn. This is a very grave and important point. To suggest we could do anything other than have a criminal sanction associated with a breach does not face the reality of what the Constitution does. Just as I say to colleagues opposed to the legislation that we cannot ignore the Supreme Court decision in the X case I must also say that I must also respect, and do profoundly respect, the Constitution, although as a citizen I find quite extraordinary and frankly offensive the notion there would be a criminal sanction involved for a pregnant woman in these circumstances. The Constitution is clear on the right to life of the unborn and the protection of the right to life of the unborn, and until such time as this is revisited it remains the position. In so far as there is a statutory provision restating the offence there is no way of avoiding a criminal sanction of the level proposed in the legislation. The sentence to be applied in a particular case is always a matter for the court involved and in the circumstances we have here a prosecution may only be brought with the consent of the DPP.
The Bill clarifies existing law and I am conscious of the point raised by many Deputies that it does not address many circumstances which arise too often for pregnant women throughout the country. Many colleagues would like to see other grounds included in the legislation, particularly in heartbreaking cases where there is a diagnosis of a fatal foetal abnormality. With profound regret I must say these provisions cannot be included because the purpose of the Bill is not to confer new rights to termination of pregnancy but to clarify existing rights.
The question of representation or separate representation for the unborn was raised and it has been debated here and outside the Chamber. It is important to be clear about what people must mean by separate representation for the unborn, how it might possibly work and what precisely is being suggested. It is not simply a case of the Attorney General appointing a lawyer just to act in some generalised way. Ours is an adversarial system and what is being proposed, because it can only mean this, is to introduce some type of procedure allowing for a forensic cross-examination of a woman, essentially of her bona fides to establish whether she is making an honest claim. What else could it mean? This is all it could mean. Article 40.3.3° neither requires nor contemplates such a procedure. The Constitution requires the State with due regard to the equal right to life of the mother to respect and, as far as practicable, by its laws to defend and vindicate the right to life of the unborn. If one reads the section closely, the State’s obligation is to be carried through in its laws. The requirement on the State is to vindicate the right to life of the unborn in its laws. This is why the legislation before the Oireachtas sets out a rigorous certification procedure by doctors who are expressly required to have regard to the need to preserve unborn life as far as practicable. It would be wholly inappropriate and entirely unnecessary constitutionally to introduce a legal procedure with separate representation for the unborn, and frankly there is no proposal to do so in the Bill.
Some Deputies raised the issue, quite reasonably, of greater supports for crisis pregnancy in general. I reiterate the HSE crisis pregnancy programme funds 15 service providers to provide counselling services in more than 50 locations nationwide. A number of these services also provide access to free post-termination counselling and medical checkups. I urge all women who have a termination of pregnancy to avail of these services to which they are entitled and which are provided free of charge.
The main purpose of the Protection of Life During Pregnancy Bill 2013 is to restate the general prohibition on abortion in Ireland by regulating access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human Rights in A, B and C v. Ireland. There is much talk about stepping stones and floodgates and what the future will bring. I do not know what the future will bring on this issue. I agree with Deputy Kyne and many others, and Deputy Walsh also made the point perhaps from a different perspective, that this issue will not be finally resolved in this legislation because how could it? No country in the world can draw a final line in the sand under this issue. It simply is not a realistic proposition. Perhaps there will be a future referendum. The case for a future referendum will be made and it has some force, but the requirement on us in this context with this legislation is to give legislative foundation to a right which already exists in our Constitution. We have set out a procedure by which it can be availed of. It is balanced legislation. Deputy Catherine Murphy stated the Bill is the bare minimum and I must agree with her on this. It is a fair assessment. On the other hand, Deputy Clare Daly suggested we could have done much more, and I was surprised to hear her state this because, in fairness to her, the two draft Bills she brought forward made it very clear what the constitutional constraints were.
Two quotes from two colleagues fairly reflect on what is being done here. They are not particularly legalistic, but they encapsulate very fairly and in a very reasonable way what we are doing. Deputy McLellan described the measure as a matter of common decency and Deputy Cowen described it as a good faith measure. I thank both of them for their support for the Bill. I thank all Deputies in the House who have set out their views and for contributing to the debate, whether for or against. This legislation is measured, and it is fair-minded and balanced. I commend the Bill to the House.