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An Bille um an Ochtú Leasú ar an mBunreacht, 1982: An Tuarascáil (Atógáil) agus an Chéim Dheiridh. Eighth Amendment of the Constitution Bill, 1982: Report Stage (Resumed) and Final Stage.

Thursday, 26 May 1983

Seanad Éireann Debate Vol. 100 No. 12

First Page Previous Page Page of 9 Next Page Last Page

Atógadh an díospóireacht ar leasú Uimh. 2:

I leathanach 5, líne 25, An Sceideal, Cuid I, “chomhcheart” a scriosadh agus “réamhcheart” a chur ina ionad,

agus

I leathanach 5, líne 31, An Sceideal, Cuid II, “equal” a scriosadh agus “prior” a chur ina ionad.

Debate resumed on amendment No. 2:

In page 4, line 24, Schedule, Part I, to delete “chomhcheart” and substitute “réamhcheart”,

and

In page 4, line 30, Schedule, Part II, to delete “equal” and substitute “prior”.

—(Senator McGuinness).

Mrs. Robinson:    Zoom on Mary Robinson Last night I was attempting to assess the significance of the brief intervention made by the Minister for Justice on Report Stage. I am glad to welcome the Minister back in the House for the resumption of the debate. The reason I think it is important to try to assess the significance of the intervention is that the Minister for Justice repeated again what is clearly his grave concern at the inadequacy of the wording of the amendment as it exists. During Committee Stage debate in this House the Minister referred to this question of balancing the rights of the pregnant woman and the foetus, the fertilised ovum or the unborn at whatever stage is being considered, whether it is a possible threat to the pregnant woman and some choice must be made between the woman and the unborn. The passage where the [1232] Minister intervened on Committee Stage on this point is in Volume 100, No. 9, column 955. It is worth referring to that passage because it shows the important issue which the Minister raised then and came back to last night on Report Stage. The Minister said:

On the question of balancing the rights of mother and child, there is the right to life of the citizen in the Constitution and obviously that includes mothers as well as other citizens but, again, if we simply had a statement giving a right to life to the unborn child and did not attempt to allow for current medical practice by some form of subsequent or subsidiary phrase, we would be leaving it open to the courts to balance the existing right of the citizen in the Constitution with the new right which we would be giving to the unborn child. Maybe that would be a way of doing it but we would not be establishing a situation where the Supreme Court would not have a major role. We would be saying we will put a right to life of the unborn child into the Constitution, that a right to life of all citizens exists already and that in cases — as at times in current medical practice — where there appears to be a conflict, it would be up to the courts to decide. I felt I needed to make a comment on those points because while what the Senator says is interesting, for those reasons it does not help the situation, and I would not advise an amendment along those lines should go back to the Dáil. I doubt that it would have the prospect of acceptance.

That was the way in which the Minister raised this issue on Committee Stage. Then last night he came back to it in the unusual situation, almost a role reversal as I was saying last night, when he continues, as indeed I do and those other Members who are still participating in this debate do, to ask the question what the risks to pregnant women will be in a situation where the Constitution confers a constitutional right and does so in the language and in the manner of creating an equality of rights and indicates and [1233] allows on the face of it no preference to either in case of conflict.

I understand from the intervention of the Minister, on Report Stage, that he is concerned to highlight this grave omission, this grave problem with the existing text. Senator O'Leary on Committee Stage also drew attention to this problem. He asked what he called the sponsors of this amendment, the Fianna Fáil Party, to explain why they would not accept the addition of some formulation to the effect that where there was a definite threat to the life of a pregnant woman that medical steps could be taken and any steps taken would not be unlawful, would not be in breach of a constitutional right and would not be contrary to the Constitution and law of the State. This concern for women and for the risks inherent in this amendment, in so far as it may affect pregnant women, has also been expressed publicly by the Taoiseach. He has drawn attention to this and he says he will make a public statement when the Bill has been passed by both Houses and he will warn of the risk in this amendment to the lives of pregnant women.

The Minister of State with responsibility for women's affairs, in a contribution during the debate in this House, said that she believes this wording is dangerous and she will advise that it be rejected if it goes to a referendum. We have very clear and very concerned statements by the highest political authorities in our system on this issue, the Taoiseach, the Minister for Justice and the Minister of State with responsibility for women's affairs warning us that this text is dangerous to the lives of pregnant women. When I went home last night I reflected further on the matter. It occurs to me that there is a kind of analogy, it is like the Government warning on cigarette packets. It says that cigarette smoking is dangerous for your health. Will there be some Government warning on the ballot paper if this goes to a referendum?

This proposal places at risk the lives of certain pregnant women. The mind boggles. Surely it is in the public interest that we take more time to consider this. Let it go back to the other House and there will be a proper debate on the extent and [1234] scope of that risk to pregnant women. Surely it is not a situation, even at this very late stage, where the stance is that of abstaining, because there has been enough talk about this it has to go to the people, it is an uncomfortable political situation, it is the mood that prevails in the Fine Gael Party. It is simply incredible and the deepest insult that I know to women that the Taoiseach, the Minister for Justice and the Minister of State with responsibility for women's affairs would draw attention to the fact that this text is dangerous and poses risks to pregnant women and yet that they would not use every resource of our parliamentary process in order to ensure that further time and consideration was given to the text before it was the one submitted to the people.

On the wording of the text as it stands there is no preference given to pregnant women in a situation where a choice has to be made between the lives in that life threatening situation which occurs. The purpose of this amendment on Report Stage is to give a prior right, which is current medical practice here. That is what the Minister is referring to. In his contribution on Committee Stage the acting leader of the House, Senator O'Leary, invited new thinking. He asked us to come forward with possible alternatives to improve the situation and not simply put forward the amendment which Fine Gael had put forward in the Dáil which had been rejected.

This is the second new thinking on this that has come forward on Report Stage in the House. It is not too late at this stage for the warnings which are given at the highest level by the Taoiseach, the Minister of Justice and the Minister of State with responsibility for women's affairs to be carried through into action, as Senator Bulbulia said. It is part of her philosophy that if she believes in something, if she states it, then her actions follow her words. I thought she said this with great simplicity and great authority in her contribution on Second Stage.

It is not too late to have an influence and to make a constructive contribution in this debate because, as was pointed out yesterday, by Senator Higgins in particular, [1235] the medical profession are broadening and deepening their awareness of the difficulties. There were some members of the medical profession who from the very beginning pointed to the difficulties and dangers in this proposed text. The wheels of every establishment structure in Ireland move slowly. It is only now that some very senior members of the medical profession have been alerted, are becoming aware, are writing letters to the papers and are calling meetings to consider the implications. Many of us might say they should have done it a year ago. They should have woken up. They have the expertise. They know the problems and the practical difficulties. Their contribution would have been more helpful if they had intervened at an earlier stage but that is precisely what I understand the balances in our legislative system to be. The whole purpose of having a second run of legislation right through its five Stages in the Upper House — it having passed through the other House — is so that it can act as a means of public information and education so that those who are in a position to make a contribution in the media or in the public forum because they have some expertise — of course the medical profession have — can do so. There is no rush about this. Nobody has been able to put forward any credible reason why we have to dash into setting a date for a referendum.

In view of the very strong disquiet that must be felt by any reasonable citizen when such authoritative voices point to the risks to life implied in this proposed text there is a very direct responsibility and challenge to us in the Seanad to consider the matter carefully. This was something on which I dwelt at considerable length on Second Stage and I do not intend to dwell on it at great length now. It is not too late, the subject is not a boring one, it is about life-death chances in certain instances and about how we effect the change.

The Minister, in his contribution last night, looked across at the Fianna Fáil benches and asked whether, at this late stage, some explanation could be given as to why the sponsors of the constitutional [1236] amendment will not accept some formulation to clarify and to avoid this risk to the lives of pregnant women. There was an attempt to answer some of those questions on Committee Stage from the Fianna Fáil benches, particularly in the contribution made by Senator Eoin Ryan. I want to refer to the two brief passages in his contribution where he attempted to meet some of these problems. We are now on Report Stage and, in my submission, the problem is still as acute and difficult as it was and no answer has been provided. We are not reassured at all. On the contrary, I am all the more alarmed that somebody who is as senior in the legal profession as Senator Eoin Ryan can brush aside the difficulties that have been raised and repeated in the contribution by the Minister last night. I refer to the contribution by Senator Eoin Ryan, reported in the Seanad Official Report, Volume 100, No. 9, column 990. He dealt first of all with the scope of the concept of the unborn and then afterwards with the balancing of rights. Both passages are relevant to the amendment we are considering. Senator Eoin Ryan said:

Senator O'Leary raised a second aspect of this which, of course, is a much more substantial one, what does “unborn” mean, at what stage would the child have to be to be “unborn” to be covered by this amendment. That is certainly a very important point but it is so complicated that it would be quite impossible to define it in such a way that no doubt would be left. It would be necessary to put some sort of medical dissertation into the Constitution to deal with this matter, to put the pros and cons and to finally come down. Of course, that is clearly quite impracticable. What has to be done is to put in a word and allow the Supreme Court — if the matter ever arises — to interpret that in the light of medical, moral and legal opinion at the time, to have regard to the climate of public opinion. If the point arises as to exactly what stage the foetus is covered by this then they may have to interpret it. There is nothing wrong with allowing that kind [1237] of interpretation to the Supreme Court. That is one of the very useful things the Supreme Court does, to interpret Articles of the Constitution as time goes on, having regard to the climate of public opinion, medical views and developments at a particular time. It is a very proper function for the Supreme Court to define what exactly that means in the light of opinion, legal and other opinion, at a particular time. That is the only way to approach this matter. If we did attempt to put in a medical definition into the Constitution it is quite possible that in a relatively short time further views and opinions would become acceptable which would mean that the definition in the Constitution would no longer be valid.

There are several different ways in which that is a most interesting contribution. First of all, Senator Ryan admits that the text is not clear as to the point at which we are conferring the constitutional right oh the unborn. He says that it may vary from time to time. That is very interesting because, in fact, that could be an indication that if public opinion were in favour of legalised abortion the Supreme Court should interpret the point in time as being a much later one. I have not seen many other interpretations of a similar kind put on this by spokespersons on behalf of Fianna Fáil. I do not know whether this is the authoritative interpretation of the Fianna Fáil group in the Seanad, that the interpretation of the Supreme Court should vary in the light of public opinion. I had thought the whole idea was to stop any possibility of a varying definition in the light of public opinion, that the whole philosophy and approach was to halt any possibility of a development in public opinion along those lines. And yet this is what Senator Eoin Ryan appears to be suggesting and stating clearly in that passage.

One would get the impression from the reference made to the Supreme Court that somehow the Supreme Court would be there in the maternity hospital sitting beside the doctor able to give an answer. Senator Ryan knows as well or for longer [1238] than I how long it takes to get a case to the High Court and then on to the Supreme Court. Even if it is done with the greatest urgency by way of some sort of injunctive relief it is a matter that would certainly take weeks. If it is a normal declaratory action it would take years. Therefore, in this situation where we are pointing to grave risk to the life of pregnant women it is no consolation to the woman on the line or no help to the doctor trying to remain within the law — which, presumably, doctors like every other citizen are required to do — to know that somewhere, sometime somebody might be able to mount a long and complicated case that would go to the Supreme Court.

I thought the whole purpose and thrust of the amendment was to take this out of the realm of the unpredictable Supreme Court. There was a great deal of Supreme Court knocking in the lead up to the urgency and need for this constitutional amendment. In so far as there are some attempts to answer they confirm the wide gaps in our understanding of this amendment. They confirm that the dangers that have been pointed out are not only present but are real in seeking to understand the scope of the present text.

I refer now to the second passage in the contribution by Senator Eoin Ryan where he refers to the problem of balancing between the constitutional rights, the constitutional right which we are proposing to confer on the unborn at some stage in the cycle and the constitutional right to life of the woman as a citizen, the existing constitutional right. In his contribution he referred to the questions posed by Senator Higgins to define what exactly the position would be in various medical situations in which the life of the mother and the life of the child would be in jeopardy. At column 991 he said:

I am going to attempt to give an answer to that. I am not answering it because I have any pretensions to any medical expertise, but I am going to give an answer on the basis that I can at least, like Senator O'Leary, express a legal opinion which, of course, could be wrong. Senator O'Leary said that [1239] he could be wrong. I accept that I could be wrong. I would also like to mention that the Attorney General could be wrong and the Director of Public Prosecutions could be wrong. Legal opinions are merely opinions. In these very complicated medical situations which were brought before us, the position will be, if this amendment is passed, exactly what it is at present. No change will be made in the law by this amendment. This is an amendment of the Constitution. It will not per se make any change in the law. The law which will be applicable to this kind of situation is the law under the 1861 Act which exists at present and which, presumably, will be there in the future until such time as some other law takes its place, and in that case the Constitution will ensure that that new law will be similar, basically, to that which is there at present. So the answer to these complicated questions that are asked about medical situations is that what has been permitted up to now will be permitted in the future. There will be no change. The purpose of this Bill is not to change the law, to do the exact opposite: it is to ensure that the law will not be changed in such a way as to allow abortion in the future.

That is where I disagree fundamentally but, obviously with respect for a colleague, with Senator Eoin Ryan.

This amendment will necessarily change the law and the position. It will not affect the criminal law except to confer a constitutional right on an entity, on the unborn. That is a very substantial change. Legally that is a very specific, concrete, important, practical change. We are conferring a constitutional right, we are not sure just exactly when it is going to date in the fertility cycle of reproduction, but we are conferring it. Once a constitutional right has been conferred then, as the amendment itself says, the State must endeavour to defend and vindicate it. It is a right which can be asserted in our courts. Because the fertilised ovum, or the embryos, cannot assert that right, it can be asserted by a [1240] third party on behalf of the addressee of the right, the beneficiary of the right. There is by necessary consequence of having a written Constitution, of having a whole jurisprudence on the protection of rights under the Constitution, a change from the pre-existing position. The conferring of a constitutional right on the unborn may well change the interpretation of the 1861 Act. It may well be that there could be a challenge to the 1861 Act on the grounds that it was in some way incompatible with the constitutional amendment so that the law is changed significantly in a number of ways but in particular by the fact that we create beneficiaries of constitutional rights.

The Supreme Court has stated quite clearly in, for example, the case Byrne v. Ireland in 1972 — when Kathleen Byrne brought an action against the people of Ireland and succeeded in recovering damages for injury caused to her — that for every constitutional right there is a remedy. There is the possibility of asserting that right and the courts will be open to the assertion of that right. We are not doing something abstract and illegal by stating that we are going to confer a constitutional right to life on an entity. We may be doing something very vague and hard to determine. Nonetheless the legal position is that the entity on whom we have conferred that constitutional right has a constitutional right to life and therefore has the right to have that right asserted in court, has the right to have that right defended and vindicated as far as practicable, and has the right to have that right given equality with the right of the pregnant woman.

Mr. M. Higgins:    Zoom on Michael D. Higgins Na mbeo gan breith.

Mrs. Robinson:    Zoom on Mary Robinson Na mbeo gan breith. That is a very serious situation indeed. As Senator Higgins in his contribution last night made clear, unsatisfactory as the English text is, the Irish text is less satisfactory, is less clear and more open to posing a very real and serious threat to the life of a pregnant woman.

I am back to the problem on which I reflected overnight and came up with this analogy of the cigarette packet. We [1241] have a very clear warning on cigarette packets that smoking is dangerous, no equivocation of maybe, smoking is dangerous to health. The only honourable stance for the Minister for Justice would be to seek to ensure that the ballot papers which we will be discussing in the next Bill will carry a Government warning that this amendment is one which will endanger the lives of certain pregnant women. If that message is not got across there is a danger that a very significant number of people who do not like the whole debate about this amendment, who are alarmed and depressed at how divisive it has been, will say they will not vote for this amendment because they do not like, for various levels of reasons, the way in which it has been brought forward, the tactics used and the unnecessary taking up of parliamentary time.

It is necessary to make sure that the message gets across that they should not abstain on this issue, that there is a very specific concrete reason why they should vote against, why all women in Ireland should vote against this measure, because it poses a direct risk to certain pregnant women. Whatever about the distance that male politicians can put between themselves and that reality — I do not suggest for one moment that all male politicians, or the majority of them can distance themselves — it is important for women to stand together on this and realise the very real risk which is one that their attention is being focused on by the Taoiseach, the Minister for Health and the Minister of State with responsibility for women's affairs, that it poses a risk because it does not in its wording specify that in a situation where there is a life-threatening problem, either the life of the mother or the life of the unborn, where the choice must be made between them, there is any preference or guidance on any preference. There is nobody to say in those circumstances that it would be lawful to exercise a choice between the constitutional rights which have been given a status of equality. That is why this one word amendment is, in fact, a significant improvement on that situation. Certainly, I have no objection at all to recognising a constitutional right of the unborn [1242] but I believe it must be one which is not going to pose serious risk to the very life of a pregnant woman which this text poses. That is one of the most serious criticisms of the constitutional amendment.

Getting back to the insult posed to women by the fact that we could have a measure to amend our Constitution which poses risks to the life of certain pregnant women, we are so close to the debate now and have had so much of it, that it is difficult to stand back from it and see the awful reality of how the proposal, and the blackmailing pressures that were brought to bear, have led to this sorry pass. For observers outside the country, people in Northern Ireland, for people who know Ireland well but are viewing it from a certain distance, it must be very difficult to try to understand how any Government, even in present difficulties, could possibly allow a text to go through a House where it could be defeated and delayed, which poses a serious potential threat to pregnant women. I suppose the reality is that it is part of our Irish way of doing things.

Up to two years ago when this movement for a constitutional amendment started we did not concern ourselves once in this House with the reality of the problem on the ground, with the serious social problems, loneliness, guilt, distress, economic pressures, housing pressures and emotional pressures on women. We still are not really concerning ourselves with the front line problems in these areas. It is only another dimension that we are prepared to take a risk in relation to the very life of certain pregnant women. I only draw attention to it because I do not know any other way of expressing my total disgust with the possibility that a political party who have the voting strength to delay and have further discussion on this measure would adopt a stance of abstaining. I have to say that it really does pass comprehension.

Just as I have already expressed the view that this whole debate has been, and will continue to be, very counterproductive. I believe it has in a way that was unthought of a few years ago made the whole discussion of abortion not only [1243] respectable but widespread so that it is much more likely to spring to the front of the mind of any woman or girl who finds herself pregnant and is in difficulty as to how to cope with that pregnancy. It is more likely now that not only will the option of terminating through abortion occur to such a woman or a girl, but that she will know where to go to find a clinic or doctor to terminate the pregnancy.

Once the risks of this constitutional amendment are fully understood by the medical profession, if this amendment is carried, we might also see a possibility that pregnant women would go abroad to have their children. It is possible that pregnant women would say: I am not going to be in a situation where, in a choice, I am at risk as to how the doctor is going to interpret this vague provision. It may be that husbands will say that they would not like their wives to be placed in this situation of serious risk. I repeat, it may well be that it will remain a point of fundamental difference between the interpretation I place on this and the interpretation Senator Eoin Ryan placed on it on Committee Stage and may seek to do on a later stage in the debate this afternoon, that there is no doubt at all in my mind that if we are conferring a constitutional right on an entity, however we define or say how the right becomes real and is conferred on the beneficiary, on that entity, on the unborn, once we confer that right that has changed the position, that itself has changed the law. There is no need for legislation after that. That is a right which the courts must uphold. That is a right which the courts must recognise. That is a right that can be asserted and which will be protected by our courts. It must also be defended and vindicated by our Legislature and by every law abiding citizen in the State. That right has been placed on a footing of equality with the right of the woman.

The value of the Committee and Report Stage debates in the House, and the amendments put down and discussed, must be to publicise as widely as possible the very serious questions that have been raised by Senators, the very serious question [1244] which the Minister posed last night as to why the proposals of this constitutional amendment will not allow that doubt and that worry of the risk to pregnant women to be removed. The message must go forth from this Chamber and, hopefully, will be carried into any constitutional referendum debate that there may be that this is not an abstract issue. The amendment is not only unsatisfactory for all the reasons people had thought but also poses a serious risk to certain pregnant women and, therefore, must be rejected. We can still hope that the people will save us from our politicians and that they at least will have had the time to become alert to all the difficulties, apart from all the political price that we would pay for decades if this amendment becomes part of our law. We know we will pay that price. We will pay that price on the 30th of this month when the Forum comes together for the first time. We will pay it for decades when anybody wishes to put forward progressive social legislation or to open up ideas here. We will wear it around our necks like an albatross but, nevertheless, this debate, and the amendments put down, will have helped to clarify and to focus on the dangers which more and more leaders of opinion, including medical opinion, are drawing attention to. For that alone the time we have taken has been very worthwhile.

I still have some hope, given the reasonable and modest approach of Senator O'Leary, acting leader of the Fine Gael group, on Committee Stage that there may have been a change of mind, a change of heart, a change of attitude. There is no doubt that Senator O'Leary shares with me the worry I have. I gathered that from his contribution on Committee Stage. I hope I am as modest as he and can admit that I too can be wrong. Nevertheless, there is no doubt at all that the conferring of a constitutional right changes the law and changes the responses of the courts and the responses of the medical profession in coping with pregnant women, coping with difficult problems of choosing between the life of the pregnant woman and the life of the unborn. Therefore, at the very least this [1245] constitutional text should carry a Government warning that it is dangerous to certain pregnant women.

Mr. Mullooly:    Zoom on Brian Mullooly I had not intended to contribute again to this debate. I spoke on Second Stage and I indicated my support for the proposal to amend the Constitution. I stated that I believed that such an amendment was necessary in order to guarantee the right to life of the unborn. I outlined why I felt such an amendment was necessary and I stated I was quite happy with the proposed wording. At the outset I should like to say that nothing I have heard or read since has altered my views in any way. Having listened to or read most of what was said on Committee Stage, and listened to the debate yesterday, I decided to make a brief contribution today. I am not a lawyer nor have I any medical qualification or expertise. I am certainly not a theologian. Furthermore, I know I cannot express myself as articulately as the Senators who have dominated this Stage of the debate. Why then do I feel I should become involved in the discussion again? It is because I want to express, and put on record, my views as a lay person, and as a public representative in relation to two points in the proposed wording which have been raised repeatedly during the debate. Again and again the meaning of the word “unborn” has been questioned. I believe very few words are absolutely precise in their meaning. The meaning of any word is determined by the context in which it is used and by the generally or publicly accepted meaning of the word when it is used in that context. I am satisfied that the meaning of the word “unborn” is not in any way ambiguous in the context of the proposed amendment wording. In fact, its meaning is very clear. It means the new life that exists within the mother during pregnancy. It cannot mean anything else. I am satisfied that it is the ideal word to be used in this context.

Senator Higgins said that the originators of the word were the moral majority in the United States. I am not worried where the word came from as long as it suits the purpose for which it is required and [1246] the context in which it is used. Some Senators made the point that “unborn” is an adjective and should be used to qualify a noun. This would be a very good point to make if we were students writing grammatical notes on the wording for the leaving certificate or some other examination. However, I believe that to use any noun with the word “unborn” would raise more problems than it would solve. For example, it was suggested that to insert “child”, “person” or “human being” after “unborn” would improve the wording or make it more correct or precise. The question could then be raised what would be the position of a mother who was expecting twins, triplets or quads or even Siamese twins. In my view the word “unborn” on its own embraces all new life irrespective of whether that new life is a single foetus or twins or any number of foetuses. There is nobody in this country who is not quite clear on what “unborn” means in the context of the proposed wording.

The second point I want to make is in the connection with the expression or the phrase “the equal right to life of the mother” in the wording. To refer to the equal right to life of the mother is not the same as saying that the mother and the unborn baby or, as Senator Robinson said, the fertilised ovum, are equal. We are not discussing the word “equal” in a mathematical sense. We are not talking about two triangles, yet Senator Robinson set out in the best Euclidian style to prove that “the equal right to life of the mother” will make the 25-or 35-year-old mother and the fertilised ovum equal, as Euclid would say, in every respect. The only thing she left out was the QED at the end.

I do not accept that the phrase “equal right to life” could be construed as meaning any such thing. If we look at the right to life of the citizen which is guaranteed in the Constitution we can say in the same way that all citizens have an equal right to life, yet a situation can arise where the right to life of citizen A is seriously threatened or put at grave risk by citizen B. Citizen A in order to preserve or safeguard his right to life causes citizen B to die. I submit that there are many such [1247] situations in which we would have to agree that no guilt attaches to citizen A because citizen B died, and yet the right to life of each was equal. This is why I do not accept that the phrase “the right to life of the mother” means what Senator Robinson says it means, or that its inclusion in the Constitution will have the effect of interfering in any way with existing medical practices or procedures in the treatment of pregnant women. I am not saying that Senators should not be raising these points or asking these questions or looking for as much clarification as possible on these matters, but I am satisfied it would be possible to do the same thing with the wording of any other Article of the Constitution as Senators are doing with the proposed amendment wording.

As regards the proposal that the word “prior” should be substituted for the word “equal” in the wording I am convinced that such a change would facilitate the introduction of limited abortion into this country and so I am opposed to any such change. I make these points to put on record why I as a lay person and a public representative will have no difficulty in supporting and recommending support for the proposed wording.

Mr. Fitzsimons:    Zoom on Jack Fitzsimons I will be brief. During the course of this debate in both Houses of the Oireachtas and on a larger scale outside we have heard many people say that they, were against the amendment and yet they were not in favour of abortion, and I accept that as genuine. However, I would like to know if anyone is in favour of legalised abortion. I believe that somebody somewhere feels sincerely that abortion should be legalised, that people who go abroad to have abortions should be facilitated at home and there would be no danger to the morals of the rest of the people in providing for that, but nobody has stood up to say so. Instead they say that society with its moral and social pressures is to blame for those abortions, but I do not accept that. Ambition or selfishness may be involved, practical reasons or sensible reasons may be offered, but I do not accept that the [1248] guilt, blame or responsibility can be offloaded on society in this way.

Senator McGuinness referred to pronouncements of some medical men who were Protestants and she said they did not represent the voice of the Protestant Church. Without being critical I want to state that I find difficulty in deciding what is the unified voice of the Protestant Church. The Senator also said that the courts would be concerned with interpreting the wording of this amendment and not with the contributions of Senators. The Senator is a noted lawyer and what she says must be so, and yet I have read of a case where the judge quoted a contribution in this Seanad in deciding a case.

I regret very much the unfair attack on Senator Higgins. I would say in passing, not as a justification but as an excuse, that we can all be carried away if we feel very deeply about something. I am sure Senator Higgins will understand this and his shoulders are big enough to carry it and to be forgiving. Senator Robinson referred to sectarianism. She gave it more meaning than I would. She referred to it as the views of one Church. It is generally accepted that the word “sectarian” includes an element of bigotry and bigoted denominationalism.

Mrs. Robinson:    Zoom on Mary Robinson I made it clear that it was the dictionary meaning of reflecting the views of one sect or one denomination.

Mr. Fitzsimons:    Zoom on Jack Fitzsimons I am not contradicting the Senator, I am simply saying that in my view the normal meaning that is taken from the word “sectarian” is bigoted denominationalism. There is nothing sectarian in this, and I have stated that before now. It is a question of human rights.

Senator Brendan Ryan also referred to not knowing for certain. There is only one thing that we are all absolutely certain about. We cannot be absolutely certain about anything else but we can have reasonable certainty. Senator Robinson said that questions are being asked and are not being answered. They are being answered and they have been answered [1249] to my satisfaction. She also spoke in glowing terms about the university Senators and she was entitled to enthuse about them, but I feel she was unfair to others. All of them who spoke have made a very important contribution to the debate and I would describe them, in the phrase of Charles Dickins, in the superlative degree of comparison only. In my experience on housing schemes and in various situations often somebody who is doing the most menial task comes up with the solution, not the intellectuals. When this goes to the people they will be well able to assess the situation and they know what they are doing.

Senator Robinson expressed concern about equating the fertilised ovum to a woman. My understanding of the matter is that the same applies to the aged and the senile. The Senator also referred to the substantial natural wastage in lost fertilised ova. I have no answer for this apparent problem in nature. I cannot talk about a useful productive factor because the aged and senile would have to be considered under this category, but when the Senator referred to risks to mothers and deaths she was unfair to doctors and to the medical profession. I am satisfied from what the medical experts say that the risks which the Senator talks about are not there. When Senator Robinson says she is not reassured but more alarmed by what Senator Eoin Ryan has stated, I cannot attempt to make any meaningful contribution in that area. We have a notice on cigarette packets to the effect that smoking can injure health. Childbirth can be dangerous to health. I hope it will not be considered facetious of me if I say that sex can seriously damage your health.

The word “unborn” has come up repeatedly here and I define it exactly as I understand it. The Constitution deals with people. That is clear. I did state that “unborn” was an adjective qualifying a noun. What is the noun? Is it babe, baby, child, being or human being? I said that the noun was left out for some obvious and sound reason. The “unborn” refers to the gestation period of the human being. This period ends at birth. When [1250] does it begin? I have asked before now when is this new life switched on? A new life is switched on at the moment of fertilisation, in other words at the time the female ovum is fertilised by the male sperm. This is a scientific fact and nobody on the other side of the House has proved that it is not a scientific fact. This gestation period lasts normally for 266 days. This question is being put to me, and rightly so, to answer as I understand it and I am doing that. The question is: do I consider it wrong to do something that would terminate this life at the stage between fertilisation and implantation? I must answer honestly, yes, I believe, it is morally wrong.

Mr. O'Leary:    Zoom on Sean A OLeary Should it be legislated for as well as being morally wrong?

Mr. Fitzsimons:    Zoom on Jack Fitzsimons That is the point I make. We are not dealing with morals in legislation, we are not even dealing with the question of when the soul is infused into that body. That does not arise. It is morally wrong to interfere with human life at any stage in a way that will terminate that human life, from that moment of conception to death. That is the teaching of the Roman Catholic Church.

Mrs. Robinson:    Zoom on Mary Robinson No, they allow exceptions in ectopic pregnancy and cancer of the womb.

Mr. Fitzsimons:    Zoom on Jack Fitzsimons Of course there are. I am dealing——

Mrs. Robinson:    Zoom on Mary Robinson That is a contradiction of what the Senator has been saying.

An Leas-Chathaoirleach:  Senator Fitzsimons to continue without interruption.

Mr. Fitzsimons:    Zoom on Jack Fitzsimons I am making the point that it is the teaching of the Roman Catholic Church that from that moment of fertilisation it is wrong to do anything deliberately and intentionally that would directly terminate that life. In the double effect situation, it is not wrong to treat the condition of the mother, where the fertilised ovum or child may be lost.

[1251] Mrs. Robinson:    Zoom on Mary Robinson That is the point, but how do you have a double effect on the constitutional right? Constitutional rights and double effects should not be able to apply.

An Leas-Chathaoirleach:  Please, Senator Robinson — Senator Fitzsimons to continue.

Mr. Fitzsimons:    Zoom on Jack Fitzsimons I want to be clear on this because this is important. I am prepared to state exactly what I understand. From the moment of fertilisation it is morally wrong to interfere with that life. The legal question is quite different. I have been reassured that existing practice will not be affected by this amendment. I am so assured by experts and I am quite satisfied about that.

The question was asked did the husband want to stand there and see his wife killed. These are emotional terms and I do not think that this situation would arise. Indeed, it is a reflection on doctors and on the medical world even to suggest that this situation could arise. This referendum is not about contraception. It is simply to ensure that abortion will not be legalised in the future except by a vote of the people. Finally, when all this smoke is blown away we will not see the monster that all the Senators on the other side have told us about. What is on the other side is a helpless, unborn baby. All we are trying to do here is to give the constitutional right which at the moment is enjoyed by the citizen to the human being for all of the period from the moment of fertilisation to birth. I see no reason why the word “equal” should be deleted and substituted by the word “prior” as in this amendment.

Mr. O'Leary:    Zoom on Sean A OLeary I do not intend to make a Fifth Stage speech at this stage. Therefore, even though I have listened to the other Senators and prepared a speech, having prepared it, I decided that it is not appropriate to what we are discussing. It is more in line with what we should say ultimately on Fifth Stage. Therefore, I am not going to deal with the question of which of the political parties should be most ashamed of themselves at the way [1252] they behaved, at least not until Fifth Stage.

An Leas-Chathaoirleach:  That will be in a fortnight.

Mr. O'Leary:    Zoom on Sean A OLeary Even the fact that I am not doing it and other people have done it should redound, in your eyes, to my credit rather than to anyone else's credit.

An Leas-Chathaoirleach:  The Senator has not yet come back into my good graces.

Mr. O'Leary:    Zoom on Sean A OLeary That is impossible. The electricity is positive and negative. I do not think it can ever——

(Interruptions.)

Mr. O'Leary:    Zoom on Sean A OLeary It is very refreshing to hear Senator Fitzsimons talk because it is quite obvious that his contributions are his own, are carefully prepared and he has made a really excellent contribution to this debate. He is prepared to put his thinking on the line and to express what he believes in. I disagree with him in about 95 per cent of what he says, but that is the way it goes. He has quite clearly raised the moral question of the effect on fertilised ova of this suggested amendment, but he has failed really to distinguish between the moral situation and the legal position. You cannot just get rid of the problem by saying that there will be no change in the present practice. That is the result rather than the means to the result. You cannot jump from an examination of the text before us to that conclusion without going through the intermediate process which I honestly feel that he has not gone through.

With regard to the amendment before us this amendment has not been argued by the proposer in the detail which I would expect for such an amendment. It is not sufficient for the proposer to promise to deal with points that will arise at the conclusion, because the conclusion is the conclusion and nobody else has an opportunity of expressing a viewpoint at that stage. I contrast the way in which the word “prior” has been generally referred [1253] to but not subjected to detailed analysis in the way each and every other word has been subjected to analysis here, and the contrast is quite startling. If you say you are in favour of putting a new word in, well then it is only right and proper that you should subject that new word to the same degree of critical analysis to which you subjected the word it is replacing and the other words within the amendment itself. That has signally failed to be done. Those who contributed have failed totally to examine and to say what they think. They have stated what they do not mean by “equal” or what they think “equal” might mean, but they have not examined properly what positively they think the new wording with the insertion of the word “prior” and the deletion of the word “equal” would mean. The problems that that would create have not been fully learned.

Establishing a two-tier structure in the Constitution — unconnected as it would be with this amendment taken on its own or with any definition of the word “unborn”— would create an imbalance which would be unacceptable in the other direction. It is not only a question of what one does if there is an unborn person, child, foetus, and the mother is in a life-threatened situation. There is no point in not recognising the reality, and there are a number of other situations in which the balance between doing something or not doing something is very fine. Present practice is that if there is an overwhelming necessity to preserve the life of the mother that is done and it is right that it should be done. The introduction of the word “prior” would substantially change that balance. For those who would not support this amendment it is reasonable to pose to those who are supporting it that, as was demanded of the original wording by Senator Higgins on Committee Stage and repeated by Senator Robinson on Report Stage, they would have subjected this word to the same kind of certainty that they demanded of the other side. That has not been done because it opens up a whole Pandora's Box of what the prior right of the mother is. It does change the existing situation [1254] substantially.

Therefore, in those circumstances it is reasonable to say that no reasonable person, irrespective of his or her view on the amendment itself, could be satisfied that the substitution of the word “prior” and the deletion of the word “equal” would not change substantially the existing law and the existing practice. Since what I would broadly seek to do is to maintain the existing practice, whether the other amendment does it is a different question. We have already examined that point.

With regard to this particular amendment to the amendment, the case has not been made that the balance would be substantially disturbed and the existing law would be fundamentally changed. I understand the frustration of those who seek to insert the word “prior” instead of “equal” but it is going much too far without the kind of analysis and examination which were demanded and not received partly because there was no attempt to do it and partly because the certainty with which it was being demanded was impossible to deliver anyway. This substitution admits the high standards set of such amendments by those who support the use of the word “prior”. To a certain extent, those who support that have failed to discharge the obligation which they impose on themselves. That is a reasonable position and in those circumstances I could not support the substitution of the word “prior” for the word “equal” because without subjecting it to the most detailed public examination here and from the examination I have made I have reached the conclusion, be it right or wrong, that in doing so I would fundamentally change the present situation and the present practice.

Mrs. Robinson:    Zoom on Mary Robinson In what way?

Mr. O'Leary:    Zoom on Sean A OLeary As I explained to Senator Robinson, in the present situation the dividing lines between where intervention and termination of a pregnancy takes place and where it does not take place is a matter of judgment and that point of intervention would be substantially changed by the introduction of the word [1255] “prior” and the elimination of the word “equal” because a more remote possibility of danger to the life of the mother would demand and be expected to receive protection. Basically I believe that the balance which exists at present and which is satisfactory would be changed in such a way as to change substantially the present situation in an indefinite way which would be almost incapable of definition. Over a period of time that prior right to life of the mother would grow into a right and a practice which would be far more widespread and far more all-embracing than the present situation. That is what would happen. There is no doubt about it.

There is also the point as to the quality of life and the health of the mother which would not be specifically life threatening there and then but we do not know whether the health of the mother would be entitled to be taken into consideration. If we did that we would change the law in a very fundamental way, and in a way in which I do not want to change it and it would not have my support.

It was interesting to hear what the Minister had to say yesterday. My understanding of it was a little different from that of Senator Robinson. I did not understand the Minister to say that he regarded the present wording as posing a threat to pregnant women. Other Senators for whom I have tremendous respect have made that suggestion but I did not understand the Minister to say it in the House yesterday.

The Minister, quite reasonably, called upon the Opposition to recognise that — this was clearly shown up by Senator Robinson in her quotation on Committee Stage — they were leaving the interpretation of the present wording to the Supreme Court and that the definition of what a life threatening situation is for the mother will be ultimately for the Supreme Court to decide. It appears that Fianna Fáil are happy that the court would uphold the established medical practice at present and that is what I would wish them to do. I do not think we can be certain that that is the case and therein lies the problem. The Minister's [1256] approach was a little different in that what he was seeking was, if possible, to have a qualifying statement which would simply make it clear that any operations that are necessary to save the life of the expectant mother would not be unlawful. Sometimes in introducing a matter like this, it can be easier and more straightforward to put things in that way, that operations that are necessary to save the life of the expectant mother would not be unlawful. You can leave the general law there. I understand that to be the Minister's position. Generally speaking, the case for this amendment has fallen substantially short of what is necessary to encourage me to support it.

Mr. E. Ryan:    Zoom on Eoin David Senior Ryan I will try to be fairly short because I recognise that this is a debate in which the same questions are being asked and the same answers are being given. Nobody is satisfied with the answers they are getting but they are the answers.

Senator Robinson said that, far from wasting time, she would be prepared to spend ten years here if her stamina permitted rather than allow the people to vote. In the early stages of this discussion it was said that the introduction of this amendment showed lack of confidence in the courts and in the Oireachtas. Nothing I have yet heard in this discussion went anywhere near to expressing the extraordinary lack of confidence in the people which was expressed by Senator Robinson. She would talk for ten years rather than allow the people to express their views on this matter. That seems to me a quite astonishing lack of confidence in the people and the democratic system. However, if necessary we will go on discussing this again and again, asking the same questions and giving the same answers.

Up to this amendment in this House, the problem for a lot of people was giving equality to the foetus which was at its very early stage and where it could be argued that it was not a human being, it was so early that it should not have equality with the mother. That was a problem which had to be given very serious consideration. But we are now talking about [1257] priority, the prior right of the mother, apparently at any stage, during pregnancy of eight or nine months, or even a few days before the child is born because this amendment seeks to give a prior right to the mother, there is no qualification, and it would be a right up to the very day before the child was born. It seems to be going very far indeed to deny equal rights to a child which had reached that stage. I think by anybody's definition or belief a child who is so near being born would be a human being and should have equal rights with the mother. It is no longer a question of whether it really was a child, whether it really had a soul, whether it had the full characteristic of a person but would give prior rights to the mother right up to that stage.

Senator Higgins argued in favour of this amendment by saying that it would remove some of the doubts about the rights of the mother. It seems to me that it would remove all of the doubts as to the right of the child, because if the welfare of the mother is always to have priority, which of course this says, then it would be no exaggeration to say that the whole constitutional amendment would be quite worthless. We would be preparing the way for legislation to allow abortion if the physical or mental health of the mother was at risk, psychologically or any other way, that then she must have prior rights. That is what it must mean. In this respect I think that Senator O'Leary has said something very similar and he must forgive me if I am misrepresenting him.

If we were to adopt this amendment and give prior rights to the mother then we would be preparing the way for a situation in which any excuse could be given for saying that there must be an abortion because the mother must have prior rights and her health was at risk in some way, mentally or physically. Of course we would then be so near the situation that exists in many other countries that we would have sold the past, we would have reached the stage when very soon, with a few more moves in that direction, we would have abortion on demand. You cannot have a situation where you are going to give prior rights [1258] to the mother without saying that the infant has not equal rights and without saying that any case can be made for giving prior rights and, in such circumstances, this amendment would be worthless and the life of the unborn would be very seriously at risk, not perhaps today or tomorrow, but in the future.

I can see why Senator McGuinness put down this amendment. I can see her concern for the mother. I can see why she seeks in some way to protect the mother, to express concern for the mother or to try and arrive at a formula which would ensure that the mother's life would be respected and protected. But I have to say that if this wording is used “prior” means more, it means better, it means superior, it does not mean equal because if it meant equal then there would be no necessity or purpose in the amendment. It means superior rights and once you have superior rights then any situation in which the life or health or anything in connection with the mother can be used as a reason for having an abortion.

The Minister intervened yesterday to express his concern and apprehension in this matter. Senator O'Leary said that there seems to be some difference of opinion as to what exactly his view was. I was a little uncertain myself. I understood him to say that an attempt had been made in the other House to introduce some kind of an amendment which would protect not merely the mother but a doctor who is treating the mother so as to save her life. He asked why it would not be possible to have such an amendment in this Bill. I do not wish to be contentious but if the Minister were seriously concerned, and if he regarded this as a really serious danger, then he should act and do something about it. He has the ability in this House, he has the voting strength in this House to introduce an amendment to support the present amendment. The fact that he does not consider it necessary to do what could be done in this House leads me to assume that although he is expressing a reservation, concern, that he is making a point, he is not unduly apprehensive that the Bill as it stands is going to lead to a dangerous position for women in these [1259] situations. I must and do give him credit for the fact that if he was so concerned that this was a real danger he would act and do something about it. Because he has not acted and has not done what he certainly could do in this House, then I can only assume that he thinks it is a good and interesting point, something which should be explored but that he does not really believe that it is going to lead to a dangerous situation for mothers.



t is a very substantial change. Legally that is a very specific, concrete, important, practical change. We are conferring a constitutional right, we are not sure just exactly when it is going to date in the fertility cycle of reproduction, but we are conferring it. Once a constitutional right has been conferred then, as the amendment itself says, the State must endeavour to defend and vindicate it. It is a right which can be asserted in our courts. Because the fertilised ovum, or the embryos, cannot assert that right, it can be asserted by a [1240] third party on behalf of the addressee of the right, the beneficiary of the right. There is by necessary consequence of having a written Constitution, of having a whole jurisprudence on the protection of rights under the Constitution, a change from the pre-existing position. The conferring of a constitutional right on the unborn may well change the interpretation of the 1861 Act. It may well be that there could be a challenge to the 1861 Act on the grounds that it was in some way incompatible with the constitutional amendment so that the law is changed significantly in a number of ways but in particular by the fact that we create beneficiaries of constitutional rights.

The Supreme Court has stated quite clearly in, for example, the case Byrne v. Ireland in 1972 — when Kathleen Byrne brought an action against the people of Ireland and succeeded in recovering damages for injury caused to her — that for every constitutional right there is a remedy. There is the possibility of asserting that right and the courts will be open to the assertion of that right. We are not doing something abstract and illegal by stating that we are going to confer a constitutional right to life on an entity. We may be doing something very vague and hard to determine. Nonetheless the legal position is that the entity on whom we have conferred that constitutional right has a constitutional right to life and therefore has the right to have that right asserted in court, has the right to have that right defended and vindicated as far as practicable, and has the right to have that right given equality with the right of the pregnant woman.

Mr. M. Higgins:    Zoom on Michael D. Higgins Na mbeo gan breith.

Mrs. Robinson:    Zoom on Mary Robinson Na mbeo gan breith. That is a very serious situation indeed. As Senator Higgins in his contribution last night made clear, unsatisfactory as the English text is, the Irish text is less satisfactory, is less clx8x8and serious threat to the life of a pregnant woman.

I am back to the problem on which I reflected overnight and came up with this analogy of the cigarette packet. We [1241] have a very clear warning on cigarette packets that smoking is dangerous, no equivocation of maybe, smoking is dangerous to health. The only honourable stance for the Minister for Justice would be to seek to ensure that the ballot papers which we will be discussing in the next Bill will carry a Government warning that this amendment is one which will endanger the lives of certain pregnant women. If that message is not got across there is a danger that a very significant number of people who do not like the whole debate about this amendment, who are alarmed and depressed at how divisive it has been, will say they will not vote for this amendment because they do not like, for various levels of reasons, the way in which it has been brought forward, the tactics used and the unnecessary taking up of parliamentary time.

It is necessary to make sure that the message gets across that they should not abstain on this issue, that there is a very specific concrete reason why they should vote against, why all women in Ireland should vote against this measure, because it poses a direct risk to certain pregnant women. Whatever about the distance that male politicians can put between themselves and that reality — I do not suggest for one moment that all male politicians, or the majority of them can distance themselves — it is important for women to stand together on this and realise the very real risk which is one that their attention is being focused on by the Taoiseach, the Minister for Health and the Minister of State with responsibility for women's affairs, that it poses a risk because it does not in its wording specify that in a situation where there is a life-threatening problem, either the life of the mother or the life of the unborn, where the choice must be made between them, there is any preference or guidance on any preference. There is nobody to say in those circumstances that it would be lawful to exercise a choice between the constitutional rights which have been given a status of equality. That is why this one word amendment is, in fact, a significant improvement on that situation. Certainly, I have no objection at all to recognising a constitutional right of the unborn [1242] but I believe it must be one which is not going to pose serious risk to the very life of a pregnant woman which this text poses. That is one of the most serious criticisms of the constitutional amendment.

Getting back to the insult posed to women by the fact that we could have a measure to amend our Constitution which poses risks to the life of certain pregnant women, we are so close to the debate now and have had so much of it, that it is difficult to stand back from it and see the awful reality of how the proposal, and the blackmailing pressures that were brought to bear, have led to this sorry pass. For observers outside the country, people in Northern Ireland, for people who know Ireland well but are viewing it from a certain distance, it must be very difficult to try to understand how any Government, even in present difficulties, could possibly allow a text to go through a House where it could be defeated and delayed, which poses a serious potential threat to pregnant women. I suppose the reality is that it is part of our Irish way of doing things.

Up to two years ago when this movement for a constitutional amendment started we did not concern ourselves once in this House with the reality of the problem on the ground, with the serious social problems, loneliness, guilt, distress, economic pressures, housing pressures and emotional pressures on women. We still are not really concerning ourselves with the front line problems in these areas. It is only another dimension that we are prepared to take a risk in relation to the very life of certain pregnant women. I only draw attention to it because I do not know any other way of expressing my total disgust with the possibility that a political party who have the voting strength to delay and have further discussion on this measure would adopt a stance of abstaining. I have to say that it really does pass comprehension.

Just as I have already expressed the view that this whole debate has been, and will continue to be, very counterproductive. I believe it has in a way that was unthought of a few years ago made the whole discussion of abortion not only [1243] respectable but widespread so that it is much more likely to spring to the front of the mind of any woman or girl who finds herself pregnant and is in difficulty as to how to cope with that pregnancy. It is more likely now that not only will the option of terminating through abortion occur to such a woman or a girl, but that she will know where to go to find a clinic or doctor to terminate the pregnancy.

Once the risks of this constitutional amendment are fully understood by the medical profession, if this amendment is carried, we might also see a possibility that pregnant women would go abroad to have their children. It is possible that pregnant women would say: I am not going to be in a situation where, in a choice, I am at risk as to how the doctor is going to interpret this vague provision. It may be that husbands will say that they would not like their wives to be placed in this situation of serious risk. I repeat, it may well be that it will remain a point of fundamental difference between the interpretation I place on this and the interpretation Senator Eoin Ryan placed on it on Committee Stage and may seek to do on a later stage in the debate this afternoon, that there is no doubt at all in my mind that if we are conferring a constitutional right on an entity, however we define or say how the right becomes real and is conferred on the beneficiary, on that entity, on the unborn, once we confer that right that has changed the position, that itself has changed the law. There is no need for legislation after that. That is a right which the courts must uphold. That is a right which the courts must recognise. That is a right that can be asserted and which will be protected by our courts. It must also be defended and vindicated by our Legislature and by every law abiding citizen in the State. That right has been placed on a footing of equality with the right of the woman.

The value of the Committee and Report Stage debates in the House, and the amendments put down and discussed, must be to publicise as widely as possible the very serious questions that have been raised by Senators, the very serious question [1244] which the Minister posed last night as to why the proposals of this constitutional amendment will not allow that doubt and that worry of the risk to pregnant women to be removed. The message must go forth from this Chamber and, hopefully, will be carried into any constitutional referendum debate that there may be that this is not an abstract issue. The amendment is not only unsatisfactory for all the reasons people had thought but also poses a serious risk to certain pregnant women and, therefore, must be rejected. We can still hope that the people will save us from our politicians and that they at least will have had the time to become alert to all the difficulties, apart from all the political price that we would pay for decades if this amendment becomes part of our law. We know we will pay that price. We will pay that price on the 30th of this month when the Forum comes together for the first time. We will pay it for decades when anybody wishes to put forward progressive social legislation or to open up ideas here. We will wear it around our necks like an albatross but, nevertheless, this debate, and the amendments put down, will have helped to clarify and to focus on the dangers which more and more leaders of opinion, including medical opinion, are drawing attention to. For that alone the time we have taken has been very worthwhile.

I still have some hope, given the reasonable and modest approach of Senator O'Leary, acting leader of the Fine Gael group, on Committee Stage that there may have been a change of mind, a change of heart, a change of attitude. There is no doubt that Senator O'Leary shares with me the worry I have. I gathered that from his contribution on Committee Stage. I hope I am as modest as he and can admit that I too can be wrong. Nevertheless, there is no doubt at all that the conferring of a constitutional right changes the law and changes the responses of the courts and the responses of the medical profession in coping with pregnant women, coping with difficult problems of choosing between the life of the pregnant woman and the life of the unborn. Therefore, at the very least this [1245] constitutional text should carry a Government warning that it is dangerous to certain pregnant women.

Mr. Mullooly:    Zoom on Brian Mullooly I had not intended to contribute again to this debate. I spoke on Second Stage and I indicated my support for the proposal to amend the Constitution. I stated that I believed that such an amendment was necessary in order to guarantee the right to life of the unborn. I outlined why I felt such an amendment was necessary and I stated I was quite happy with the proposed wording. At the outset I should like to say that nothing I have heard or read since has altered my views in any way. Having listened to or read most of what was said on Committee Stage, and listened to the debate yesterday, I decided to make a brief contribution today. I am not a lawyer nor have I any medical qualification or expertise. I am certainly not a theologian. Furthermore, I know I cannot express myself as articulately as the Senators who have dominated this Stage of the debate. Why then do I feel I should become involved in the discussion again? It is because I want to express, and put on record, my views as a lay person, and as a public representative in relation to two points in the proposed wording which have been raised repeatedly during the debate. Again and again the meaning of the word “unborn” has been questioned. I believe very few words are absolutely precise in their meaning. The meaning of any word is determined by the context in which it is used and by the generally or publicly accepted meaning of the word when it is used in that context. I am satisfied that the meaning of the word “unborn” is not in any way ambiguous in the context of the proposed amendment wording. In fact, its meaning is very clear. It means the new life that exists within the mother during pregnancy. It cannot mean anything else. I am satisfied that it is the ideal word to be used in this context.

Senator Higgins said that the originators of the word were the moral majority in the United States. I am not worried where the word came from as long as it suits the purpose for which it is required and [1246] the context in which it is used. Some Senators made the point that “unborn” is an adjective and should be used to qualify a noun. This would be a very good point to make if we were students writing grammatical notes on the wording for the leaving certificate or some other examination. However, I believe that to use any noun with the word “unborn” would raise more problems than it would solve. For example, it was suggested that to insert “child”, “person” or “human being” after “unborn” would improve the wording or make it more correct or precise. The question could then be raised what would be the position of a mother who was expecting twins, triplets or quads or even Siamese twins. In my view the word “unborn” on its own embraces all new life irrespective of whether that new life is a single foetus or twins or any number of foetuses. There is nobody in this country who is not quite clear on what “unborn” means in the context of the proposed wording.

The second point I want to make is in the connection with the expression or the phrase “the equal right to life of the mother” in the wording. To refer to the equal right to life of the mother is not the same as saying that the mother and the unborn baby or, as Senator Robinson said, the fertilised ovum, are equal. We are not discussing the word “equal” in a mathematical sense. We are not talking about two triangles, yet Senator Robinson set out in the best Euclidian style to prove that “the equal right to life of the mother” will make the 25-or 35-year-old mother and the fertilised ovum equal, as Euclid would say, in every respect. The only thing she left out was the QED at the end.

I do not accept that the phrase “equal right to life” could be construed as meaning any such thing. If we look at the right to life of the citizen which is guaranteed in the Constitution we can say in the same way that all citizens have an equal right to life, yet a situation can arise where the right to life of citizen A is seriously threatened or put at grave risk by citizen B. Citizen A in order to preserve or safeguard his right to life causes citizen B to die. I submit that there are many such [1247] situations in which we would have to agree that no guilt attaches to citizen A because citizen B died, and yet the right to life of each was equal. This is why I do not accept that the phrase “the right to life of the mother” means what Senator Robinson says it means, or that its inclusion in the Constitution will have the effect of interfering in any way with existing medical practices or procedures in the treatment of pregnant women. I am not saying that Senators should not be raising these points or asking these questions or looking for as much clarification as possible on these matters, but I am satisfied it would be possible to do the same thing with the wording of any other Article of the Constitution as Senators are doing with the proposed amendment wording.

As regards the proposal that the word “prior” should be substituted for the word “equal” in the wording I am convinced that such a change would facilitate the introduction of limited abortion into this country and so I am opposed to any such change. I make these points to put on record why I as a lay person and a public representative will have no difficulty in supporting and recommending support for the proposed wording.

Mr. Fitzsimons:    Zoom on Jack Fitzsimons I will be brief. During the course of this debate in both Houses of the Oireachtas and on a larger scale outside we have heard many people say that they, were against the amendment and yet they were not in favour of abortion, and I accept that as genuine. However, I would like to know if anyone is in favour of legalised abortion. I believe that somebody somewhere feels sincerely that abortion should be legalised, that people who go abroad to have abortions should be facilitated at home and there would be no danger to the morals of the rest of the people in providing for that, but nobody has stood up to say so. Instead they say that society with its moral and social pressures is to blame for those abortions, but I do not accept that. Ambition or selfishness may be involved, practical reasons or sensible reasons may be offered, but I do not accept that the [1248] guilt, blame or responsibility can be offloaded on society in this way.

Senator McGuinness referred to pronouncements of some medical men who were Protestants and she said they did not represent the voice of the Protestant Church. Without being critical I want to state that I find difficulty in deciding what is the unified voice of the Protestant Church. The Senator also said that the courts would be concerned with interpreting the wording of this amendment and not with the contributions of Senators. The Senator is a noted lawyer and what she says must be so, and yet I have read of a case where the judge quoted a contribution in this Seanad in deciding a case.

I regret very much the unfair attack on Senator Higgins. I would say in passing, not as a justification but as an excuse, that we can all be carried away if we feel very deeply about something. I am sure Senator Higgins will understand this and his shoulders are big enough to carry it and to be forgiving. Senator Robinson referred to sectarianism. She gave it more meaning than I would. She referred to it as the views of one Church. It is generally accepted that the word “sectarian” includes an element of bigotry and bigoted denominationalism.

Mrs. Robinson:    Zoom on Mary Robinson I made it clear that it was the dictionary meaning of reflecting the views of one sect or one denomination.

Mr. Fitzsimons:    Zoom on Jack Fitzsimons I am not contradicting the Senator, I am simply saying that in my view the normal meaning that is taken from the word “sectarian” is bigoted denominationalism. There is nothing sectarian in this, and I have stated that before now. It is a question of human rights.

Senator Brendan Ryan also referred to not knowing for certain. There is only one thing that we are all absolutely certain about. We cannot be absolutely certain about anything else but we can have reasonable certainty. Senator Robinson said that questions are being asked and are not being answered. They are being answered and they have been answered [1249] to my satisfaction. She also spoke in glowing terms about the university Senators and she was entitled to enthuse about them, but I feel she was unfair to others. All of them who spoke have made a very important contribution to the debate and I would describe them, in the phrase of Charles Dickins, in the superlative degree of comparison