It is a criticism that no Senator in this House can avoid or rest easy on or ignore. I would submit that it is a criticism that is very relevant indeed to supporting the motion which we have put down that this is not a wording which is a proper subject for a referendum by the people.
I turn now more specifically to the legal problems caused by the wording involved, which partly flow from and are partly aggravated by the ambiguity in that wording. This proposal seeks to add a new subsection (3) to section 3 of Article 40 of the Constitution. It must be of concern to Members of this House that the new subsection could affect existing rights under the Constitution and we have a duty to weigh that up. None of the other proposals to amend the Constitution — none of the other seven — had this difficulty. None of them threatened other possible rights. This one clearly can, and I submit, does and therefore we have to be very careful that in seeking to add something we do not subtract in an important and serious way from rights that are already existing and guaranteed under the Constitution.
Since I have got to this stage in my speech I should put on the record of this House the precise wording that we are considering in the English text. The Irish text will, of course, be the authoritative one but I propose to confine most of my remarks to the English text and it provides: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The first significant legal problem arises from the reference in that context to "the unborn". Here again I propose to refer to the serious questions and reservations expressed by the Attorney General on that particular terminology. In relation to the use of the word "unborn" he stated in the same statement on 16 February 1983 as follows:
The use of the word "unborn" in the proposed amendment is significant because it has not to my knowledge been used before in a similar context, that is as a noun standing on its own. The word is usually taken in association with "child", "person" or "human being". The word, used as a noun, is not in fact defined in any of the standard English dictionaries. The reason why it is used in the proposal, without any supporting noun, deserves detailed consideration, as this is the word which defines the class to be afforded protection.
The Irish text of the proposed amendment, which must prevail in cases of conflict and which corresponds to "the unborn" in the English, can be translated as "the unborn living" or "the living unborn".
In the event that the Supreme Court is called upon to construe the proposal, it could come to a number of different conclusions as to the definition of the class which is afforded protection. Undoubtedly a view which might commend itself to the court is that all human beings fall within the ambit of the amendment, and that a human being comes into existence when the process of fertilisation is complete.
It is, I believe, the position of many in the community that the inalienable right to life attaches to the newly fertilised ovum prior to implantation. The consequences of such a definition of the commencement of human life are matters on which medical opinion would be required.
If, as would appear to be the case, it is correct to state that certain contraceptives can operate after fertilisation, then these would be abortifacient if human life commences on conception. Thus the importation, dissemination and use of such contraceptives would be prohibited, and as an example, the use of the "morning-after" pill in the treatment of rape victims will not be permissable, nor will the use of such contraceptives in certain conditions of the health of a woman — e.g. valvular heart disease or diabetes.
As I said earlier there are, however, other conclusions that the Supreme Court might reach in defining what is meant by "unborn". It might simply conclude that the question cannot be answered definitively. (In considering the rights, if any, attaching to life before birth in the United States the Supreme Court there determined that to attempt to reach a conclusion on the issue would be to speculate because "those trained in the respective disciplines of medicine, philosophy and theology are unable to arrive at any consensus".) Other conclusions might be that human life commences at the moment of implantation of fertilised ovum or when brain activity commences.
However, the point of time for which the most compelling legal argument could be made, other than the time of fertilisation, as being the moment of commencement of protection, could be said to be the time when the foetus becomes independently viable. I understand that this is probably at some time between 25 and 28 weeks of pregnancy.
Such a construction could be supported by an argument that "unborn" could be regarded as being applicable only to something capable of being born. The word "unborn" used as a noun must, as a matter of language, mean "unborn person", "unborn child" or "unborn human being". It could be argued that neither a fertilised ovum, a fertilised and implanted ovum, an embryo or even a foetus prior to the time when it is independently viable, would come within this definition.
The consequences of such a finding could be that there would be no constitutional prohibition on abortion prior to this stage of pregnancy.
So the Attorney General is showing the potential, quite conflicting interpretations and that is the fundamental problem with this wording. How is the voter to know whether he is voting for the life of the unborn begining at conception, the life of the unborn beginning at implantation or the life of the unborn beginning at the stage when the life is viable after quickening in the mother's womb? How is the ordinary punter to know? It makes a great difference at the early stages, in distinguishing between the moment of the conception and implantation, to the use of certain types of contraceptives, the IUD, the "morning-after" pill and so on. It makes a difference at the other end of the spectrum in that if the Attorney General's reference to the possible interpretation as being at the point of viability is correct — and I think he is right to raise the problem because it is a problem of interpretation — then we would be doing the opposite to what the ordinary voter thought he was doing: we would be opening the door to very extended legalised abortion in Ireland.
We cannot run away from this problem and we cannot say this is lawyers' language and it is not a real problem. It is a real problem because the wording is not clear on that point and the only people who can clarify it are the judges of the Supreme Court afterwards. They may either clarify it or duck clarifying it but they are the only people with a voice which could possibly clarify it.
This problem of deciding on the point when a life begins, particularly for legal purposes, is not an issue that only this country has considered and thought about. It is also an issue which has been considered by the constitutional courts of a considerable number of countries, for example, the United States, the German Constitution and Austria. Portugal recently, in a debate on this issue, also had to address itself to that problem. More recently in 1980 the Commission on Human Rights in Strasbourg had to consider the question of the right to life as protected under the Convention. Since Ireland is a member state of the Convention, it is important that Members of this House would be aware of the approach adopted in interpreting the meaning of "right to life". We do not know when the life of the unborn is to be defined. It may be of assistance to look at how this problem was considered and assessed by the Commission on Human Rights. We as a country have invoked the Commission and Court of Human Rights in bringing a case against the United Kingdom for torture and inhuman treatment and we must also consider what the Commission and Court of Human Rights have to say in areas where we are proposing either to legislate or to amend our Constitution. It at least can be instructive and helpful to us.
There have been two cases which have led to a decision by the Commission and no case has as yet gone before the Court of Human Rights. The first case that came before the Commission in 1978 was brought by two German women basically advocating a "right to choose" approach and criticising the fact that the legislation in Germany at the time was in their view too restrictive and denied them a proper right to choose. They did not succeed in the case before the Commission in that the Commission made it clear that the Convention does not recognise as part of the protection of family life under Article 8 a right of a woman to choose in that particular context.
A more recent case, and one which I think is of direct relevance to the matter we are considering here today, is the case of Paton against the United Kingdom on which the Commission gave its decision on 13 May 1980. This was a case where a father of a foetus in the United Kingdom first of all tried to bring in an injunction before the courts of the United Kingdom to prevent his wife from terminating the pregnancy on medical grounds at an early stage under the English Abortion Law of 1967. He failed before the English courts because it was pointed out that there was no civil right to life as such of the foetus recognised under the common law and the courts would not recognise any basis on which he could obtain the injunction. He then brought his petition to the Commission on Human Rights in Strasbourg. The Commission first of all found that this potential father was a victim for the purposes of being entitled to bring it and to have it considered by the Commission. Then the Commission went on to consider the relevant articles of the Convention — Article 2 which refers to the right to life and Article 8 which refers to the right to respect for family life. I only want to refer to the discussion on life and the nature of life in the decision of the Commission. I am quoting from the European Human Rights Report, 1980, 3 EHRR, page 413, paragraph 10 of the decision of the Commission, which states:
The Commission has next examined, in the light of the above considerations, whether the term life in Article 2 (1), first sentence, is to be interpreted as covering only the life of persons already born or also the ‘unborn life' of the foetus. The Commission notes that the term ‘life', too, is not defined in the Convention.
11. It further observes that another, more recent international instrument for the protection of human rights, the American Convention on Human Rights of 1969, contains in Article 4 (1), first and second sentences, the following provisions expressly extending the right to life to the unborn:
Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.
12. The Commission is aware of the wide divergence of thinking on the question of where life begins. While some believe that it starts already with conception, others tend to focus upon the moment of nidation, upon the point that the foetus becomes ‘viable', or upon live birth.
13. The German Federal Constitutional Court, when interpreting the provision ‘everyone has a right to life' in Article 2 (2) of the Basic Law, stated as follows:
Life in the sense of the historical existence of a human individual exists according to established biological and physiological knowledge at least from the 14th day after conception, (Nidation, individuation) ...The process of development beginning from this point is a continuous one so that no sharp divisions or exact distinction between the various stages of development of human life can be made. It does not end at birth: for example, the particular type of consciousness peculiar to the human personality only appears a considerable time after the birth. The protection conferred by Article 2 (2) first sentence of the Basic Law can therefore be limited neither to the ‘complete' person after birth nor the foetus capable of independent existence prior to birth. The right to life is guaranteed to everyone who ‘lives'; in this context no distinction can be made between the various stages of developing life before birth or between born and unborn children. ‘Everyone' in the meaning of Article 2 (2) of the Basic Law is ‘every living human being', in other words: every human individual possessing life; ‘everyone' therefore includes unborn human beings.
14. The Commission also notes that, in a case arising under the Constitution of the United States, the State of Texas argued before the Supreme Court that, in general, life begins at conception and is present throughout pregnancy. The Court, while not resolving the difficult question of where life begins, found that, ‘with respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability'.
15. The Commission finally recalls the decision of the Austrian Constitutional Court mentioned in paragraph 6 above which, while also given in the framework of constitutional litigation, had to apply, like the Commission in the present case, Article 2 of the European Convention on Human Rights.
16. The Commission considers with the Austrian Constitutional Court that, in interpreting the scope of the term ‘life' in Article 2 (1), first sentence, of the Convention, particular regard must be had to the context of the Article as a whole. It also observes that the term ‘life' may be subject to different interpretations in different legal instruments, depending on the context in which it is used in the instrument concerned.
17. The Commission has already noted when discussing the meaning of the term ‘everyone' in Article 2 (para. 8 above) that the limitations, in paragraphs (1) and (2) of the Article, of ‘everyone's' right to ‘life', by their nature, concern persons already born and cannot be applied to the foetus. The Commission must therefore examine whether Article 2, in the absence of any express limitation concerning the foetus, is to be interpreted: — as not covering the foetus at all; — as recognising a ‘right to life' of the foetus with certain implied limitations; or — as recognising an absolute ‘right to life' of the foetus.
18. The Commission has first considered whether Articles 2 is to be construed as recognising an absolute ‘right to life' of the foetus and has excluded such an interpretation on the following grounds.
19. The ‘life' of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article were, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited even where the continuance of the pregnancy would involve a serious risk for the life of the pregnant woman. This would mean that the ‘unborn life' of the foetus would be regarded as being of a higher value than the life of the pregnant woman. The ‘right of life' of a person already born would thus be considered as subject not only to the express limitations mentioned in paragraph 8 above but also to a further, implied limitation.
20. The Commission finds that such an interpretation would be contrary to the object and purpose of the Convention.
I know it is very tedious for those listening to go on too long on a quotation. The point of the extract I quoted is that the Commission was considering whether the right to life in the Convention, which is not defined, meant that it extended to the foetus to give it either an absolute right to life or a right to life with limitation or no right at all. It excluded the fact that the foetus was totally excluded. It said that there is a right to life of the foetus but it also excluded the absolute nature of that right. It said, and this is very relevant to the wording of this amendment, that the ‘life' of the foetus is intimately connected with, and cannot be regarded in isolation from, the life of the pregnant woman. If Article 2 were held to cover the foetus and its protection under this Article and was, in the absence of any express limitation, seen as absolute, an abortion would have to be considered as prohibited, even where the continuance of the pregnancy would involve a serious risk to the life of the pregnant woman. This would mean that the ‘unborn life' of the foetus would be regarded as being of higher value than the life of the pregnant woman.
This, I must conclude, is the reason behind the Taoiseach's statement that it could pose a threat to a woman who at the moment would not be under threat in Ireland. If a pregnant woman, for example, has an ectopic pregnancy or a cancer of the womb, she will at the moment get proper medical treatment but if the right to life were considered to be from the moment of conception and considered in those absolute terms to equal the right of the mother, then it would in fact endanger the life of the woman. I assume that the Taoiseach had the advice available to him on this point. It is for that reason that the Commission came to the conclusion that because of the dependency of the foetus on the mother, that although there is a right to life of the foetus, that it is not co-equal to the right to life of the mother. That is an extremely important aspect in seeking to consider the scope of this amendment. For that reason, although some Senators may regard what the Commission do as not relevant, I think it is helpful to see how they have sought to tackle that problem.
Apart from the legal problem of the scope of the meaning of the life of the unborn and the relationship of that life with the life of the mother, there is also the need for us to look at the common law and the existing criminal law, in other words, the Offences Against the Person Act, 1861. The debate, certainly in the other House and to a considerable extent the debate in the newspapers, on public platforms and in the media on this issue, has really ignored the Offences Against the Person Act, 1861, and sections 58 and 59 of it, even though they are the existing law.
The Minister, both in this House and in the other House, has referred to the fact that people are generally satisfied with it. I wonder if people understand the scope of it. I think that it is not so much that people are satisfied but that it was, until this debate started, a dead letter. In Senator Ryan's words in relation to statute law revision, it was deadwood. There has not been a single prosecution under the 1861 Act in this State. It might be worth looking at the scope of the prohibition contained therein. Just as constitutional law is to some extent a relatively specialist area, so too is the criminal law.
If you would bear with me, I propose to refer, not at very great length, to the only article I have seen since this great public debate was launched which refers to the 1861 Act, what it means and how it would be interpreted. This may be part of the consideration of the Director of Public Prosecutions. It is not quite clear what his worries or concerns were. There is an article which I would certainly commend to Members of this House. It is an article by Barry McAuley who is lecturer in Criminal Law and Criminology in University College, Dublin. In the first issue of the new series of Irish Law Times, Volume I, 1983 published in May 1983 he considers the scope of the 1861 Act. There has been a lot of talk about copperfastening and the Pro-Life Campaign have said that this amendment is to copperfasten the existing law. In order to copperfasten something you have to know what the existing law says and then you have to see whether the proposal just simply copperfastens or whether in fact it is changing fairly substantially the terms of reference. This article on page 8 of Irish Law Times, states as follows:
There is no such thing in the criminal law as an absolute prohibition. This follows from the nature of legal rules. Although commentators with a religious bias are apt to overlook the fact, the law is a human institution whose rules and standards must be capable of being met by the ordinary individual. Standards pitched beyond the reach of the ordinary individual may be acceptable in ethics and theology, where indeed they may well be the norm, but they have no place in the criminal law. The criminal law is concerned with the regulation of human conduct, not with the perfectability of human nature. Consequently, its standards, unlike those of ethics and theology, must take account of ordinary human capacities and limitations. Indeed, since these factors determine the extent to which human conduct can be regulated, they may be said to be implicit in the very idea of legal rules and standards.
On the following page Barry McAuley goes on to say:
But prohibitory rules also presuppose that an accused had a reasonable opportunity of complying with them, even if the question of his capacity to do so is not in dispute. Consequently, a defendant who can show that it was humanly impossible to avoid doing what he did in the circumstances — because, for example, he was acting in self-defence, under duress, or out of necessity — will normally have a good defence to a criminal charge.
This last point is fundamentally important because it brings out the point that the law does not expect the individual to comply with its requirements at any cost but merely to do what is reasonable in the circumstances, that the defendant who pleads self-defence in answer to a charge of murder will have a good defence. He relates these legal principles to the present Irish law on the issue of abortion. He says:
It will be apparent from what has already been said about the nature of legal rules that no one can be convicted of a criminal offence unless he was in a position to comply with the prohibitory norm he has been accused of violating. This fundamental principle has a number of important consequences for the law on abortion.
First, it gives rise to the inescapable fact that not all abortions are unlawful. [He is talking about the Irish law. This is true in two distinct, but related senses. Thus it is true in the weak sense that although a defendant may have done the act prohibited by section 58 of the Offences Against the Person Act, 1861, he will sometimes be excused on the grounds that he was not responsible (in the legal sense) for his actions.
For example, if someone was medically unfit, or the other case he cites is if the woman was not pregnant, thought she was and sought to terminate her pregnancy. He then goes on to the real point, that there is another sense in which it is possible that an abortion would be lawful under present Irish law. He says:
But there is also a strong sense in which abortion is lawful. This can perhaps best be seen by analogy with the law of murder. As everybody knows, not all killings are murder, in the sense that some killings, like some abortions, are justified. Thus a defendant who successfully pleads self-defence to a charge of murder will be acquitted, not because he has a good excuse for breaking the law, as would be the case, for example, if he was insane but because he has not broken the law at all. Similarly, a doctor whose patient dies on the operating table will not be guilty of either murder or manslaughter (assuming he was not negligent), since the performance of a properly conducted surgical operation, even if it involves a serious risk of death to the patient, is not an unlawful act.
However, it would be wrong to assume that these killings are lawful simply because the law allows the infliction of physical harm in the particular circumstances in which they happen to occur, that is to say, because all civilised legal systems recognise killing in self-defence or in the course of a surgical operation as a defence to a charge of murder. On the contrary, such killings are lawful and, consequently afford a good defence to a charge of murder, because the act or acts which caused death represented the only reasonable option available to the defendant in the circumstances. In a word, they are lawful because of the fundamental legal principle that any course of conduct whether it be killing or failing to comply with an immigration order, is justified in the eyes of the law if there was nothing the defendant could reasonably do to avoid it.
Thus, to return to the case of abortion, it follows that the termination of pregnancy in circumstances in which it would have been unreasonable not to do so is justified in the eyes of the law, and therefore, lawful in the strong sense of that term, and that a doctor who performs the operation in those circumstances will have a good defence to a charge under section 58 of the Offences Against the Person Act, 1861. Indeed, it is submitted that a doctor who refused to terminate a pregnancy in these circumstances would be guilty of manslaughter by neglect if the patient died, as he would be in breach of the legal duty of care which binds all doctors in such cases.
He went on to point out that he would be allowed to withdraw from the case on conscientious grounds. He goes on to elaborate on the fact that there are potential exceptions where abortion would be justified under the Irish criminal law. He makes another important point in the article:
Likewise, those Catholic theologians and apologists who insist on limiting the exceptions to section 58 to cases of ectopic pregnancy and cancer of the uterus miss the point that the doctrinal justification for allowing abortion in such cases — namely, that the doctor's intention is to save the mother, not to kill the foetus — has no basis in the law. As every law student knows, intention in the criminal law is a term of art, in the sense that it includes both (i) a desire to bring about a particular result and (ii) foresight that that result is virtually certain to occur, even if it is not desired. Consequently, it will be apparent that, if the exceptions to section 58 depended on showing that the defendant did not intend to kill the foetus, all abortions, including those allowed under the Catholic doctrine of double effect, would by definition be unlawful.
He points out, therefore, that the theory that the only abortions justified under the 1861 Act are under the so-called Catholic exception is not true; that that is not legally correct, that the legally correct position is they are justified if that was the only reasonable course that could be taken in the circumstances either by the doctor or by the woman herself. He ends, and this may be a somewhat paradoxical ending but it is in the light of this article by an expert in the field, as follows:
The amendment should be opposed not because abortion is already illegal, as its opponents continue to insist, but because there are many cases in which abortion is lawful, and because a society which turned its back on this fact would also be turning its back on the rule of law.
That may sound like gross heresy not only to other Senators but even to some Member of my own group. The difficulty in looking at this subject is that we have never debated the issue of abortion in either the Dáil or the Seanad until this constitutional amendment was put forward. The time, and the record of this House, have not been taken up with the subject and, as I said earlier — I got a nod from the Minister that he obviously agreed with me — the Offences Against the Person Act, 1861 is a dead letter. No one has been prosecuted under it because we export this social problem. That is something I will deal with at more length later. We should be aware at the same time, and we should accept perhaps not all of what is in that article if Senators object to aspects of it, that the correct legal interpretation by the criminal law, and presumably by the DPP in prosecuting under the criminal law, is that there is not at the moment an absolute prohibition on abortion. The situation is not as the pro-life campaign have seen it. They have misunderstood the initial situation and sought to have a constitutional amendment in a manner and in a context which simply is not in conformity with the existing law.
This constitutional amendment is not directly related to the criminal law. It concerns the Constitution and rights under the Constitution are sometimes contrasted from the criminal law by calling it the civil law. It poses problems in that regard, the kind of problems I referred to when looking at the Paton case, the problem of identifying a constitutional right. There is no doubt at all that if there is one thing that can be said with certainty about this proposed constitutional amendment, the wording we have, it is that it is novel. It is a very new situation to seek to confer a constitutional right on the unborn, however the unborn is to be defined. That is not to say that the law has not recognised certain rights in unborn children. For example, specifically under section 58 of the Civil Liability Act, there is the right to sue for injuries to an unborn child when the child was injured in the mother's womb but the section makes it clear that that right to sue only comes into being provided the child is born alive. The child might die almost immediately but the child must be actually born alive in order for it to be possible to maintain a suit for damages for the injuries it suffered in the womb.
The difficulty, therefore, about creating a constitutional right to life for the unborn, however we are going to define the unborn, is that the unborn cannot assert that right. That is clear. An unborn cannot assert and seek to have in some way defended personally that right. Obviously, that would be lacking in common sense. Therefore, by asserting a right, by identifying a right and by putting it into the Constitution we would be providing that somebody must be able to assert that right for the unborn. This problem gives rise to another range of potential difficulties because it is for this reason that a number of lawyers and concerned citizens are worried about the possibility of third party injunctions being brought perhaps to prevent a pregnant woman from going outside the country on the possible assumption that she may be willing to terminate her pregnancy outside Ireland.
If the right is a constitutional right then of its essence it cannot be asserted by the person on whom it is conferred, by the unborn, however defined, but it can be asserted by a third party, by concerned citizens of the unborn, by a father, as in the Paton decision, or the putative father or the husband of a married woman who wished to go abroad for an abortion.
Another area of legal problem that obviously arises relates to various advanced medical practices where the fertilised ovum may be removed from a womb and may be implanted subsequently after treatment, or may be implanted in another woman, and all of this would appear to be outlawed by the recognition of a right to life of the unborn, again depending on how that right to life is to be assessed and judged. The problem posed by the lack of clarity is a very fundamental one and it need not be a fundamental one. It is not impossible on this issue to be clear about what is meant. The constitutional amendment could say when the life begins and what is meant by the unborn. Why was this not done? Why was it not made clear and why are we discussing in this House so many related problems?
The second aspect of the constitutional amendment I wanted to refer to is the clause referring to the necessity to have due regard to the equal right to life of the mother. As I already mentioned, the Commission on Human Rights, has made it clear in the Paton case that under the Convention the right of the foetus is not equal to the right to life of the mother. We face a potential conflict there and with all this publicity on the issue although there has been no case under the old Offences against the Person Act it is not impossible to envisage that there could in fact be either litigation or a petition to the Commission on Human Rights pointing up this conflict and raising a number of worries in that regard. Certainly the wording has given rise to concern on the part of the Attorney General. I should like to quote the passage in his statement where he looks at this phrase and sees great difficulties and dangers in it. He says:
"With due regard to the equal right to life of the mother."
The next issue that is raised by the proposed amendment is the meaning and effect of the words "with due regard to the equal right to life of the mother." The meaning of "with due regard to" is entirely unclear. These words are generally perceived to allow for, at least, termination of the life of the foetus in the cases of ectopic pregnancy or cancer of the uterus. The words "with due regard to" have been understood by many to suggest that the right to life enjoyed by the unborn was to be confined in some way. That interpretation is in my opinion incorrect. (The word "comhcheart in the Irish text is literally "the same right.") The right to life of both the unborn and the mother is stated in the proposed text to be equal, and in these circumstances I cannot see how it could be possible knowingly to terminate the existence of the unborn even if such termination were the secondary effect of an operation for another purpose.
The issue of intention does not arise in the proposed amendment, and thus, it seems to me, that even if the termination of the pregnancy is an incidental consequence of an operation to save the life of the mother, it would be prohibited. The correct logical interpretation is that the right to life provided for the unborn is absolute.
If a doctor were to be faced with the choice as to saving the life of one, and thereby terminating the life of the other, then I believe that the only lawful conclusion to this dilemma would be that he could do nothing, absolutely nothing, which infringed on either right. It is only where there is no possibility of the foetus surviving, even without the doctor's intervention, that no difficulty will arise.
Whatever about such a clearcut factual situation, the difficulties of applying the provision to other circumstances will be considerable. There may be cases where a doctor will have to consider whether he can treat a prospective mother for an illness which might otherwise shorten her life expectancy if this treatment will threaten the life of the foetus.
The proposed amendment will in my view tend to confuse a doctor as to his responsibilities, rather than assist him, and the consequences may well be to inhibit him in making decisions as to whether treatment should be given in a particular case.
It seems to me that the Attorney General is pointing to the same problem that the Commission on Human Rights was faced with, that if one asserts that the unborn, however it may be defined, has an equal right, a constitutional right, to the life of the mother then one prevents the protection of the mother in circumstances where she is protected under existing Irish law, in other words, where she has an ectopic pregnancy or has cancer of the womb or the sort of serious heart condition which would mean that if she carried full term it would seriously threaten her life. That is an extremely serious situation. It is presumably why the Taoiseach has called attention to this. It is fundamental. There should be a special women's campaign on this referendum. If this text goes through then women should be alerted to the dangers to their existing rights in equating the right of the unborn equally to the right to life of the mother that it threatens.
The Minister for Health, Deputy Desmond, in a recent statement pointed to the fact there were 500 operations for ectopic pregnancies last year. The termination of the pregnancy terminated the life of the foetus in those cases because it was necessary to protect the life of the mother. That is contrary to an assertion of an equal right to life and it is changed in a very dangerous and worrying way by this proposed wording. It is not helped by the lack of any guidance or clarity as to when that life begins, as to when the life may begin. That is very important because if in due course, in the course of some litigation, the Supreme Court were to interpret that life begins at conception then there is no doubt that this would seriously affect the types of contraceptive devices which are widely used and in many cases by the lower income group of women, particularly the IUD which is more suitable to an older woman and very often is used by working-class women. Similarly, the treatment in rape cases, all of the practices which exist at present under Irish law, would appear to be in conflict with the wording.
It is fair to say and indeed a very moderate way of putting it that there are immensely serious legal problems in this wording and that they are compounded by the ambiguity of the wording. It would be one thing if the wording was clear and one could point to the problem and say: "This is what it means." The difficulty is that it is so ambiguous and obscure that it is not possible to get precise guidance on it.
I should now like to turn to another grave problem with the wording, the fact that it has been criticised and rejected by all of the Church groupings in this State other than one Church, the Catholic Church. When the text of the Bill was first published I, having examined it, issued a statement criticising it as potentially sectarian. I recall that there was great criticism at the time of the use of the word "sectarian". It was felt that it was not helpful to refer to sectarian, that this was wrong, that we are not a sectarian State and we do not do things like that. In fact since then — that was within days of this Bill being published by Fianna Fáil in November — everything that has happened has shown the potentially sectarian nature of the amendment because it has totally polarised. The official view of the Catholic Church is on one side and all of the other Church denominations are on the other side. I invite any Senator, particularly any Senator on the Opposition side who wants to defend the wording of this amendment, to explain to me what he reads into the word "sectarian". I do not read anything more into it than the dictionary meaning, of or pertaining to one sect, reflecting the denominational viewpoint of one sect. If we have one sect, the Catholic Church, on one side and all the other Churches on the other side, then surely it is an inescapable, logical conclusion that it is, if not overtly and blatantly sectarian, certainly potentially sectarian and apprehended to be sectarian.
It surely has not helped to have the various pastoral letters issued by Bishops of the Catholic Church advocating support for this amendment. In the early stages it is fair to say that neither the Bishops collectively nor individual Bishops were advocating support for any particular text. In fact, they were rather careful not to express a view until a text was published, but more recently it has been perfectly clear that they have supported this text at a time when there was very sharp and clear political divide on it. In other words, they have entered into the political arena on this. It is something I am sure historians, commentators and social scientists will comment on. It has already been referred to as the mother and child scheme, mark II. In my view, it is. We are witnessing the forces of the Catholic Church moving in on a political debate, taking sides on it and using the resources of the Catholic Church to advance those sides.
The document I referred to, under the heading, "The Archbishop Speaks", is a good example, It is dated April 1983 and it was on circulation inside churches in Dublin last Sunday. It had been issued on April 10 and was available not outside as other things are — as one goes in and out people hand one something or other, certainly speaking for the church in Haddington Road — but inside, where one picks up the Mass leaflets for the day or the hymn sheets, if it a folk Mass. Beside those sheets was the publication, "The Amendment, A Pastoral Letter" which clearly refers to the proposed amendment. Even though the matter is being discussed in the Oireachtas and even though this House could introduce other wording, it referred to the need for this proposed amendment inserting specifically the right to life of the unborn. That is very substantially a step backwards. It brings to the surface all the fears of minorities, not just religious minorities but those citizens of this State who are not members of any religious grouping. They, and all of us, can rightfully apprehend the way in which this debate has brought the Catholic Church substantially into the political arena securely and firmly on the side of this amendment.
By contrast, and on the other side, we have had what it is fair to say can only be described as the clearest statement by the minorities that I can recall, dissenting from such a constitutional amendment. The position has been made extremely clear by the official organs and representative voices of each of the main Church groupings. In a sense I welcome that very much because we are coming of age as a people, we are maturing to a stage where we are realising the price we are going to have to pay if we ever get the fulfilment of our aspiration for a united Ireland. We are beginning to realise that it hurts in that we cannot just go along and have our own moral certainties enshrined in the Constitution, that we have to listen to and have regard for the statements and commitments of others who are equally entitled to have their views respected and not to have them abused or simply overridden by the force of the majority in a referendum.
Since the issue is an extremely important one it is worth referring to some of these statements relating to the amendment. I have spent some time considering all the statements. Indeed, I have considered all the pro-life literature I have been inundated with; I read it all and I pondered on it. I have also carefully considered the statements issued by or on behalf of the various Church groupings in the country and it seems to me that implicit in all of them in some wording or other is the criticism of this cultural approach to the problem. The problem with this constitutional amendment is that it is a Catholic cultural way of doing things. One is morally right and, therefore, one puts it into the Constitution, assert it and that is the end of it. The Protestant ethos, and the ethos of the Chief Rabbi on behalf of the Jewish community, and the ethos of other groupings in the State, would be one of freedom of conscience of the individual, that it is a moral issue which one does not put in any form into a Constitution for cultural or religious reasons. It is not so much the precise wording that is causing the fear. It is that it indicates a closed, pre-emptive society which is going to fasten down a debate, prevent freedom of conscience, make certain citizens feel less citizens of this State because they simply do not subscribe either to the approach or to the wording of reducing this to a constitutional amendment.
It is important that we understand this. In fairness, this may have been the problem faced by the Minister for Justice who clearly from his speech in the Dáil indicated he would be bringing in an amendment on Committee Stage and said he had gone to the trouble of discussing various potential versions with the various religious groupings with a view to trying to achieve some kind of consensus or resolve that problem.
It must have been clear to the Minister that this was fundamentally impossible because the issue is morally divisive. The idea of having an amendment is culturally and religiously unacceptable to the Protestant ethos, to the ethos of the Jewish community and to citizens who are not members of any particular religious grouping. For that reason enough attention was not paid to the letter sent on 17 June 1982 to the then Taoiseach, Deputy Charles Haughey, headed: "Proposed Amendment to the Constitution". It said:
Dear Taoiseach,
I wish to advise you that the Standing Committee of the General Synod of the Church of Ireland at its meeting on 15 June last approved the following statement as the official comment from the Church of Ireland:—
We cannot emphasise too strongly the right to life and this includes the right of the yet unborn. The Lambeth Conference of 1958 received a Committee Report in which it was stated:—
"In the strongest terms, Christians reject the practise of induced abortion, or infanticide, which involves the killing of a life already conceived (as well as a violation of the personality of the mother) save at the dictate of strict and undeniable medical necessity."
This implies clearly that there can be medical circumstances in which a termination of pregnancy is required.
In our opinion a proposed amendment of the Constitution and a referendum will not alter the human situation as it exists in the country, contribute to its amelioration or promote a responsible and informed attitude to the issue of abortion. We gravely doubt the wisdom of using constitutional prohibitions as a means of dealing with complex moral and social problems.
Apart from the specific objection, the indication that in the considered view of the General Synod in its official communication there are medical circumstances which may justify on moral grounds the termination of a pregnancy, there is also the broader objection. There is an objection to using the means of a constitutional amendment on such an issue, a kind of blanket enforcing of a moral attitude on all citizens. Unless we understand how deep that cultural religious response is, unless we understand the gravity of the concern about freedom of conscience and the free and dignified moral viewpoint of different individuals who may differ on this issue then we have not begun to understand the major concern and the basis of the concern of the various Churches who have spoken officially on the matter.
Another statement which was issued in January this year in response to the continuing debate on it was one by the Council on Social Welfare of the Methodist Church in Ireland. This statement was issued because there was a tendency to suggest at the political level, particularly by Deputy Haughey, that the minority Churches, as he put it, had no objection to the Fianna Fáil wording. That was said on many platforms by the campaigners of the pro-life organisation. Hence there was a further statement by the Council on Social Welfare making it perfectly clear that this was not the case and that they did not, could not and would not support this constitutional amendment. Again, we have to ponder because this is the first time in my political career that we have had such a clash between what is the intention of the Legislature if this goes through and the responsible and concerned views of minority denominations in this State. The press release of the Council of Social Welfare dated 21 January 1983 states:—
The Methodist Church in Ireland is opposed:
1. To any constitutional amendment on abortion.
2. To this particular amendment.
3. To the holding of a referendum on the matter.
It is quite false to assume that, because some Protestant opinion has been tolerant of the actual wording of the proposed amendment, the Protestant Churches no longer have serious objections to the introduction of a constitutional amendment in its present form. Protestant objection has all along been to the introduction of ANY amendment in any form. That opposition remains undiminished. Separate soft comment on the wording in isolation has been a most unfortunate red herring diverting attention from our unchanging resistance. Hence we wish our position to be made quite clear.
1. The Methodist Church is totally opposed to the introduction of any Constitutional amendment on abortion. Such an amendment would be a direct negation of the principles of all the mainline Protestant Churches. The Protestant Churches have stated, both separately and through the Irish Council of Churches, that Constitutional definition in this matter is repugnant to the concept of an open society.
We reiterate the delaration of the Methodist Conference, 1981: "This Conference is firmly opposed to indiscriminate abortion, but believes that the State's regulation of this and other matters affecting morals in the Republic should be a matter for legislation in the Oireachtas and not for definition in the Constitution."
2. The Methodist Church is opposed to this particular amendment. This should not need stating, since we reject on principle the introduction of ANY amendment, but because of the impression referred to above that this amendment was in some degree acceptable, we reaffirm our strong opposition. The Executive Committee of the Irish Council of Churches, when consulted in October 1982 about the introduction of an amendment along the lines of the present wording, "reaffirmed its belief that the State's regulation of this matter in the Republic or elsewhere should be a matter for legislation and not for definition by a constitution". In point of fact the Methodist Council on Social Welfare DOES NOT regard the wording of the amendment as tolerable or innocuous, because it could not be left as an inert form of words in a Constitution. It would have to be acted upon in law. We believe that the Amendment, as at present worded, could be the basis, through litigation or other legal action, for a degree of State interference with personal and sexual privacy and medical ethics unparallelled in any country in the western world.
3. We oppose the holding of a referendum. We love our land and cherish its democracy and are sick at heart that this referendum seems to be going ahead. It may seem undemocratic to oppose a referendum, but real democracy means an open balanced society in which there is free play for opinion. Democracy is achieved slowly by a process of growing maturity and tolerance and trust. It can be destroyed at a stroke by a doctrinaire edict. Real democracy may even be damaged by popular referendum following an emotive ideological campaign, which may persuade people to vote in some degree for a closed society. It would be especially unfortunate when we seek a society of open understanding for all of Ireland, that one part of Ireland should be asked to define itself in this respect as a closed society on conservative Roman Catholic lines.
Consequently we support the campaign against the Amendment and we note with approval the recent statement of the ICTU.
I submit that we could hardly have a clearer statement than that expressing very serious concerns about any proposal to amend the Constitution and more specifically about the proposal before us today.
I wish to refer also to a recent statement by the Dean of Saint Patrick's, the Very Reverend Victor Griffin. Dean Griffin took the trouble to ensure that this statement was circulated to every Member of the Dáil and Seanad so that if any of us missed it in the newspapers or the text had not been quoted in full, which it was, the Members of both Houses would have the full text of it. It is important perhaps for historians that the text be put on the record of the House so that it will not be said of us that we did something in ignorance or lack of appreciation or knowledge of the views of spokespeople for minority groupings in our country. We will have done it in the teeth of their protests and assertions of their rights as citizens in our land. So that the full picture be known, I refer to the statement by Dean Griffin. He says:
"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."
Protestants in Ireland are utterly opposed to abortion on demand as a means of birth control or simply to terminate an unwanted pregnancy. But no Protestant Church or Protestant organisation has campaigned for the inclusion of an anti-abortion amendment to the Constitution. Why? Because
1. Protestants feel that the law governing abortion is really a matter for the Dáil. Abortion is already illegal under present legislation. Protestants feel that the Constitution should steer clear of controversial moral questions. It should have wide acceptance, being the expression of a common unity and avoiding divisive issues. Such issues should be a matter for legislation after debate and decision by the Dáil and not a matter for the Constitution.
2. The Amendment, if passed, will do nothing to deal with the social problems underlying abortion. Nor will it prevent those who wish to have abortions from travelling to England, unless we are to have medical examination at the ports of all women of childbearing age.
3. In a time of severe economic recession the country can ill afford to spend nearly one million pounds on a referendum. If such money is available it would be better spent in alleviating distress and helping to improve the quality of life of the deprived and underprivileged sections of our community. (For example, housebound disabled people still have no postal vote in the Republic, yet we appear to be obsessed with the ‘rights of the unborn'). We should get our priorities right.
4. The proposed wording of the amendment is ambiguous. It has been formed in such a way as to appear non-sectarian. But if the amendment succeeds and the ‘life of the mother' is interpreted by the courts as merely physical life, then abortion for, say, rape or incest or deformity of the foetus would be unconstitutional and a criminal offence. Thus the generally held Protestant ethical view which would allow abortion as a last resort in certain unfortunate exceptional cases, as the lesser of two evils, would be outlawed by the Constitution.
If the term ‘life' is meant to be taken in a wider sense to cover the health and wellbeing of the mother why is this not made clear in the proposed wording of the amendment? Is it because such wording, allowing for abortion in certain circumstances other than where the life of the mother is at risk would be unacceptable to the Roman Catholic Church? Since there is no objection to the proposed wording by even the most conservative Roman Catholics associated with the so called ‘Pro-Life' campaign it would appear that they see the proposed form of words as ruling out all abortion as unconstitutional with the sole exception of that which is permitted by the Roman Catholic Church—which indeed they refuse to call abortion. They see the amendment as embodying Roman Catholic teaching in the Constitution and they further imply that the Roman Catholic ethical position on this matter is the only true Christian and moral viewpoint and this should be enforced on all citizens, Roman Catholic and non-Roman Catholic alike.
No society can discard the ethical ethos which has formed and fashioned it. Irish society cannot discard its Christian ethos— this is part of our public morality and is based on Christian consensus. But where Christians differ sincerely on certain matters of morality such as abortion, the State, if it claims to be democratic and non-confessional, should not enshrine a particular denominational viewpoint, even a majority one, in its Constitution, to the outlawing of all others. This is an infringement on human liberty.
5. If an unborn child or ‘human being' is equated with a fertilised ovum, even before implantation in the womb (the Roman Catholic view), then certain contraceptive pills and devices such as inter-uterine devices could be declared as unconstitutional as abortifacients. Herein lurks a danger to family planning clinics which prescribe these methods of contraception as the most suitable in certain circumstances. The Protestant would regard this as an invasion of privacy and a denial of the rights of conscience and individual liberty.
Generally speaking the Protestant would say that a fertilised ovum is a human life with the potential of becoming a human being or person. There is a gradual development from fertilised ovum and embryo to foetus right up to the moment of birth. No consensus exists as to at what point exactly there is a ‘human being' or ‘child' present. You have a right to your opinion and I to mine, but to enshrine one particular denominational opinion in the Constitution is sectarian.
6. How will the courts interpret the Amendment?
Surely they will be guided by what the electorate voted for and this will be seen in the context of the so called ‘Pro-Life' campaign which pressed for the amendment.
Since (1) the so-called ‘Pro-Life campaign people see the wording as conforming to Roman Catholic teaching,
and (2) the vast majority, 95 per cent of the State are Roman Catholics,
and (3) the Roman Catholic Bishops have voiced no objection to the wording,
it would be very difficult for the courts to give the amendment a liberal interpretation to take into account the Protestant position. For if these words are susceptible of a wider interpretation to allow for abortion say, in rape or incest, the courts would be entitled to ask why this was not made clear in the wording. The onus will be on the opposition to prove the exception and the chance of doing so will be remote indeed. A form of words was devised which on first reading may seem non-sectarian and innocuous, but which after further study implies a sectarian point of view. The Amendment is sectarian not so much in what it says but in what it omits to say, what it fails to spell out. Here is the danger for Protestants and for those who object to the rigid view of the Roman Catholic Church.
7. This proposed Amendment is one more example of our sex obsessed society. The idea of sin seems to be confined to the sexual sphere. The moral writ of ‘right' and ‘wrong' runs only in the domain of sexual morality. Hence far more emphasis is placed on so called sexual rectitude than on matters of personal honesty, national righteousness and social justice. It is a sad reflection on our society that for example the career of a politician is more at risk if he is suspected of being out of line with the Roman Catholic teaching on divorce, contraception or abortion than if he is suspected of indulging in dishonest business transactions.
8. We have to ask ourselves the question—What sort of State do we want? Do we want a Roman Catholic confessional State or a pluralist society in the Republican tradition of Tone and Davis? We can't have it both ways.
I submit that letter demands more of a response from the biggest grouping in this House than they would abstain particularly in the light of the expressed views of the leaders of the Protestant Churches. I am not quoting from the Chief Rabbi who has, on radio and television programmes in which I have taken part, and in the public press, also made it clear that he and the Jewish people are opposed to the idea of having a constitutional amendment at all and to the wording of this one. We must ask ourselves how do we reconcile all these statements which are perfectly clear that they do not want this amendment and see it as sectarian with the fact that it seems to be meandering through? Unless the motion that I am moving this afternoon is carried this will go by default to the people of Ireland.
As I said at the outset, I am not so pessimistic about the good sense and "cop on" of the people. A great many people are rightly concerned about this amendment. That does not take away our responsibility and role as Senators to reflect on it and take a stand even if it leads to internal party difficulties. None of us can be unaware of serious difficulties within the Fine Gael Party. I always felt that the strong view expressed by leaders of Fine Gael was that they would put the country first. How does one put the country first and abstain on this? How do we allow an amendment which the Taoiseach has said is dangerous and unacceptable because of the threat to the life of the mother, which all the minority denominations have denounced as being unacceptable and sectarian, which the Catholic church is publicly canvassing for and which Catholic Bishops are distributing statements about in churches? How do we reconcile that with putting the country first? It is evidence of not wishing to be bothered further by a troublesome subject. I submit that it is a subject that will not go away and it would be better—if I may say so with deference—to be bothered by it at this stage and ensure that the Bill does not receive a Second Reading from this House. This might have a substantial influence on what might happen later. It is possible the Minister might decide to establish a joint committee of Deputies and Senators to consider all the implications of what is being discussed and to consider the law in this area. It is something that warrants further discussion and is not an urgent priority as such. It is not something that should be rushed through.
I turn now to the last heading under which I will consider the amendment that is, the social problems and aspects of it. I propose to remind the House of how the proposal emerged and surfaced in the first place because it is both unusual and worrying to reflect on how the germ of the idea came to be and how the Bill is now before us in the Seanad today.
The public campaign to have a constitutional amendment was launched by a group calling themselves the Pro-Life Group on 27 April 1981. Prior to that nobody to my knowledge was calling for a constitutional amendment. Certainly there had been no debate in the political parties, no motions at annual conferences, no political discussion calling for or pointing to the need for or warning of the danger and the necessity for a constitutional amendment. A news release of 27 April 1981 entitled "Campaign for Pro-Life Amendment to the Constitution" states:
A campaign for a constitutional amendment to protect the life of the unborn child was launched in Dublin last night (Monday, April 27) by a group of organisations acting with the full support of the Professors of Obstetrics and Gynaecology in the Irish Universities. Initially directed at the Government and the political parties, the campaign will also include, if necessary, a nationwide petition in support of the proposed amendment.
The organisations involved are,
The Catholic Guild of Pharmacists.
The Catholic Young Men's Society of Ireland.
Christian Brothers Schools Parent Federation.
Congress of Catholic Secondary School Parent Associations.
Council of Social Concern.
Irish Catholic Doctor's Guild.
Irish Guild of Catholic Nurses
Irish Nurses Organisation
Irish Pro-Life Movement.
Muintir na Tire.
National Association of the Ovulation
Method in Ireland.
The Responsible Society.
Society for the Protection of the Unborn Child.
The news conference was addressed by the Chairman of the group, Dr. Julia Vaughan, obstetrician and gynaecologist. It gives the full text of her remarks. I do not propose to quote the full text but I want to show that the intention was to have an amendment that would secure the absolute right to life of the child. On page 4 of her statement she says:
While the precise wording of the actual amendment will be a matter for others, in accordance with the legal advice available to us it is proposed that it be along the following lines:
"The State recognises the absolute right to life of every unborn child from conception, and accordingly guarantees to respect and protect such rights by law".
The wording subsequently adopted by the then Fianna Fáil Government and later reactivated by this Government does not follow that exact wording. It does not use the words "an absolute right to life". For the reasons that I have given it may achieve the same result and be an absolute right of the foetus. By equating it with the right to life of the mother it may have the effect that the Attorney General fears—it would prevent any steps being taken where a mother's life was seriously at risk and therefore it would have the effect of doing what the pro-life group thought initially. The pro-life group are strong supporters of and are making the running of this text and, therefore, they clearly see that it conforms to what they want to achieve by way of an amendment to the Constitution.
That was 27 April 1981 and on 30 April 1981 the then Leader of the Opposition, Deputy Garret FitzGerald, gave a commitment that he supported the idea of having a constitutional amendment and that he would, when in office, seek to introduce it. In mid-May the then Taoiseach, Deputy Haughey, gave a commitment as Taoiseach that he would introduce a constitutional amendment. There were elections in June 1981 and a new Government took office. Subsequently the pro-life group were anxious to renew their campaign with the incoming Taoiseach and there was an exchange of letters between Dr. Vaughan and the Taoiseach. This exchange of letters I received, courtesy of the Minister of State, Deputy Gerry L'Estrange dated 21 August 1981. He circulated it certainly to Members of Labour and Fine Gael, if not to all Members of the House, with a covering note which states:
Dear Senator,
I am sending you a copy of the recent correspondence between the Taoiseach and the Chairman of the Pro-Life Amendment Campaign, about the proposed constitutional amendment to guarantee the right to life of the unborn child, for your information.
Yours sincerely.
The letter from Dr. Vaughan is dated 10 July 1981. It is on pro-life amendment campaign notepaper and states:
Dear Taoiseach,
You will recall that at our meeting on 30 April last you indicated the full support of the Fine Gael Party for our proposal that the Constitution be amended in order to guarantee the right to life of the unborn child. We were appreciative of the manner in which our case was considered and responded to, and of the commitment to a constitutional amendment subsequently contained in the Fine Gael programme for the General Election.
As you are aware, this commitment is not referred to in the joint document "Programme for Government 1981-1986", and in consequence some apprehensions have been voiced within our constituent and supporting organisations. It would be extremely helpful, therefore, if we could have a brief note from you with which we could reassure our members in regard to Government intentions in the matter.
With good wishes to you in your new and immense undertaking.
Yours sincerely,
That was replied to by the Taoiseach in a letter dated 5 August 1981 as follows:
Dear Dr. Vaughan,
Thank you for your letter of 10th July, 1981, about the protection of the right of life of the unborn child.
There is no significance whatsoever in the fact that the commitment is not referred to in the document "Programme for Government 1981-1986".
The Government is unalterably opposed to the legalisation of abortion and is committed to taking whatever steps are necessary to ensure that an appropriate Constitutional amendment is brought forward.
The Attorney General is now examining the form such an amendment might take.
Yours sincerely.
That was signed by the Taoiseach, Deputy FitzGerald. Interestingly, very shortly after that the Taoiseach opened the session in this House with his commitment to a constitutional crusade. I cannot recall any specific mention of his commitment there or how he reconciled that with the constitutional crusade to remove any sectarian legislation or aspects of our Constitution and laws. That is the chronology of the event.
Then, as Members of the House well know, we had two subsequent elections in quick succession. This gave very real political leverage to the organisations who had come together as the pro-life campaign. They had Deputies and aspirant Deputies in a very vulnerable position. One has to pay credit to their tactics, they were very effective at using that vulnerability to ensure that commitments were given. Questionnaires were circulated, signatures were looked for, letters were written, Deputies and sometimes the running mates of Deputies were making statements which worried sitting Deputies looking to be returned to their seats and so on. Ultimately, the commitment resulted in the text being published in November 1982. The Fianna Fáil Government fell shortly afterwards and a commitment was given during the general election that the Bill would be reactivated and that there would be a referendum before the end of March 1983. It is really for social scientists and historians to guage the pressures which were on politicians with the electoral system that we have and the tight voting there has been that such commitments were given.
I have given a brief chronological account of how this first surfaced and got political attention. It is equally depressing to look at the position prior to and since April 1981 when the campaign was launched. Prior to that there had not been a proper debate on the question of abortion. We simply did not debate it or concern ourselves with it. We exported this social problem to various cities in the United Kingdom. We had the figures available to us year after year. We knew that the graph of figures was going up dramatically. We were aware that the incidence of termination from Ireland was beginning to alarm not just doctors in this country but doctors in the receiving country as being higher than they would expect it to be if there were laws for termination prevailing in Ireland. We have an artificially high export abortion rate. That is how serious the problem is.
There is a lack of access to information on methods of family planning and knowledge about them. This environment puts too much emphasis on the pressure to terminate a pregnancy which the woman for one reason or another feels she cannot cope with. It is not the first time and it will not be the last time that I will have to say in this House that we have every reason to be ashamed of ourselves. The political parties and the political, cultural broad world here in this part of the State have every reason to be deeply ashamed that we did not consider at an earlier stage the real problems involved.
I intend to consider those real problems because since 1981, in all the discussion and debates we have had, very little attention has been paid to the real problems of the situation. We export our social problem. We had official figures mentioned about a week ago by the Minister for Health of 5,000 women in 1982 going to various cities in the United Kingdom to have their pregnancies terminated. The view widely held in the medical profession and by others who are knowledgable in the field is that the figure is substantially underestimated. It is the best that can be done with the declared addresses and names of women who go abroad. It is compiled from that but it is on the conservative side. The figure is probably substantially higher than that and it has been growing dramatically in the last decade.
It is important for this House to reflect on the criticism that has been made of us by the country that deals with this social problem for us. It is interesting to get some information back from the agencies and bodies who are at the receiving end and who help these women in one way or another either in relation to looking for places where they will have their pregancies terminated or counselling at the time or helping them afterwards or just simply knowing of the state in which they arrive. The criticism that comes back to us about the situation is that Irish women are the most disadvantaged group going from other countries to the United Kingdom to have pregnancies terminated. They are the most disadvantaged group because they are the most ignorant of where they should go: they are the most conscious of guilt and fear about what they are doing. They are the most unhelped beforehand. The vast majority of them have had no prior counselling or assistance.
In the case of married women, who form about 25 per cent of the total who go, a significant number have not told their husbands, and in the case of a very significant number of them, they do not have any address of the referral body they are hoping to get to. There have been graphic descriptions of women arriving at Euston Station asking a taximan or carrying the advertisement of a PO box in their handbags, and asking if anybody knows where this address would be, and so on.
This is a terrible indictment of us. We have every reason to be ashamed of the way in which we have not addressed ourselves to the real problems. Not only have we not been concerned at all about the degree of suffering, disadvantage, guilt, helplessness and discrimination against women which are reflected in all of this but we have not looked or even wanted to look at the reasons why this may be so.
We do not appear, even in the course of a debate on this constitutional amendment, to want to address ourselves to the real issue of why it is that despite the substantial and certainly religious environment in this country and the concern for family life that is clearly evident here we have an unprecedented and, as far as the foreign jurisdiction is concerned, an artificially high abortion rate. Applying different considerations, English doctors and social scientists will say that the Irish abortion rate is artificially high because of all the surrounding circumstances of this country that is so concerned to pay at least lip service to the rights of the unborn.
This was brought home to me very graphically by a personal experience. On the evening when the Dáil was voting at Committee Stage on this Bill, and there was obviously a good deal of attention on how the vote would go and the prediction was that the Government would be defeated—which, of course, they subsequently were—Cherish, a self-help organisation which for over a decade have concerned themselves with the position of the unmarried mother and single parent in our society and have done very valiant work in relation to housing, social welfare, child care rights, creche facilities and so on, invited the press to a conference from 5 p.m. to 7 p.m. in Lower Pembroke Street. The press conference was for the purpose of re-opening the headquarters of Cherish which have been refurbished by AnCO, using the Youth Employment Scheme to do the work. The headquarters, as is common in these circumstances, had got quietly back into intense activity for some months, but Cherish had chosen that date to mark, and indeed to use it to thank AnCO, the Eastern Health Board and other agencies that had helped from time to time.
Cherish were doing this by way of a press conference hoping that it would get sympathetic consideration from the press which would help them in their work. They depend to a considerable degree on publicity for their work to alert pregnant girls in the country: they are a self-help group to which they can come, and there is warm, friendly and specialist advice to help them in one way or another to cope with a pregnancy and, if possible, to keep the children for themselves or, considering the other options available, to have the children adopted and so on.
Although one journalist came along that afternoon, fleetingly, other journalists did not turn up. Why? It was because they were all here in Leinster House, for the great non-event of all time in one sense, the defeat of the Government of the day on a proposal to amend the Constitution: because they were all hanging on the statements of people like Deputy Oliver J. Flanagan. I am not critical of Oliver J. Flanagan—that is not what I am interested in—but what is his relevance to the kind of issues that we should be discussing? What does he represent in social pressures in modern Ireland? Yet he has been photographed, quoted, put on a pedestal, loved by the media. They hang on his every word every time there is a dot or a comma of a change in the circumstances, and they are ignoring the very issues and problems which give rise to the pressures for termination of pregnancy. I do not think you are going to have to call me to order, Sir: it is not in my nature to criticise——
