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Report of the Expert Group on the Judgment in the A, B and C v. Ireland Case: Statements (Resumed) (Continued)

Friday, 7 December 2012

Dáil Éireann Debate
Vol. 785 No. 4

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(Speaker Continuing)

[Deputy John Paul Phelan: Information on John Paul Phelan Zoom on John Paul Phelan] I believe in a society that is based on rights and the most fundamental right is the right to life. That right should be upheld and vindicated and all other rights are subsidiary. That goes for everyone and it underlines my position in being a vocal critic, over many years, of the death penalty and other issues. We must arrive at a situation where protection is given to women who find themselves in medical difficulty during pregnancy. We must provide protection for professionals working with women who find themselves in medical difficulty during pregnancy.

I agree with previous speakers from the Government side who have raised the potential for further constitutional amendment with regard to the matter of psychological issues. It should still be considered by the Government but I agree with the need for the legislation and regulation to be introduced in this area in the near future. It has dragged on since the X case in 1992 and action needs to be taken. Consultation with the public on this matter is not something that should be ruled out at this juncture by the Government.

Deputy Brendan Ryan: Information on Brendan Ryan Zoom on Brendan Ryan I propose to share time with Deputy Michael McNamara. I welcome the opportunity to address the House on this important matter. Some people believe the debate should be confined to women. The debate is happening in the House, I was sent here by the women and men of Dublin North and I can do nothing about my gender. In my adult life, I know of no debate that is so divisive, bitter and harsh as the debate on abortion. It has been dominated by loud and vociferous voice from both ends of the spectrum from those in favour of a liberal abortion regime to those who want to see no move towards an abortion regime in Ireland, including legislating for the X case. The Labour Party position on this has been clear for over a decade. Our unambiguous and clear position is that we support legislating for the X case. It will remain our position until we have satisfactory legislation in place. The expert group report states that the X case decision is the law of the State as declared by its highest court. It is binding on all lower courts and generally. The report states, "Although it could have done so and has been criticised in the Supreme Court for failing in that regard, the legislature has not put in place a formal system to provide the exercise of this constitutional right." It is our job to put a formal system in place. Due to the fact the Labour Party is part of the Government, we are closer than ever to achieving it. Recent opinion polls suggest overwhelming support for legislation on the X case. The tragic death of Savita Halappanavar, six weeks ago, has brought the need for clarity in the form of legislation to the front pages again. We await the findings of the report into her death and further comment on individual circumstances is inappropriate at this stage.

The tragic death of Savita has acted as the further catalyst for public opinion. In the past few days, the budget and related matters have dominated the airwaves, newspaper columns and social media sites. The coverage of the abortion debate has moved back somewhat. I welcome the space we are now in to push the process through the House over the coming weeks. We need to learn from the past and conduct the debate in a forthright, honest and, ultimately, respectful manner. It is the bare minimum the women of Ireland deserve. For too long, there has been a lack of respect running through those most vociferous in the debate. Blame can be shared on both sides, pro-life and pro-choice. I have seen it in the past few weeks as citizen turns on citizen. This week has seen the bitter debate in the form of argument on social media about the number of people at opposing demonstrations. This debate should not operate on that level. The vast majority of people in this country are not on the extremes but want a civilised and informed debate. The majority of people in the Labour Party are not on the extreme and reflect a wide variety of views on the issue. The Labour Party reflects the beliefs of most people in Ireland on this matter. What we share is a desire to legislate for the X case as soon as possible. This is what Labour Party wants and we have brought it to Government. Now is the time for it to be delivered.

Deputy Michael McNamara: Information on Michael McNamara Zoom on Michael McNamara I thank the Ceann Comhairle for the opportunity to speak on this important issue which, as previous speakers stated, is the most divisive in Irish politics. That is perhaps why successive Governments have done so little for 20 years. The fact that something is difficult is no reason to do nothing. If that were the case, this august Chamber would still be a lecture theatre of the Royal Dublin Society. Instead it is the Parliament of a sovereign state. I welcome the commitment of the Minister for Health and the Minister for Justice and Equality to legislate in the area. I was nine years of age when the eighth amendment to the Constitution was made. I was 18 years old, and about to become a law student, when the Supreme Court decided on the X case. It involved a 14 year old girl who had become pregnant as a result of rape and, as a result, was suicidal. I will reiterate what the Chief Justice stated in that case because there has been a great deal of obfuscation: "I, therefore, conclude that the proper test to be applied is that if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible, having regard to the true interpretation of Article 40.3.3 of the Constitution." Considering that a suicide risk had to be taken into account in reconciling the right to life of the mother and the unborn, the Chief Justice continued: "I am, therefore, satisfied that on the evidence [it has been] established, as a matter of probability, that there is a real and substantial risk to the life of the mother by self-destruction which can only be avoided by termination of her pregnancy." Similar judgments were delivered by three of the other four judges, with Mr. Justice McCarthy noting pertinently "The right of the girl here is a right to a life in being; the right of the unborn is to a life contingent; contingent on survival in the womb until successful delivery." He concluded: "On the facts of the case, which are not in contest, I am wholly satisfied that a real and substantial risk that the girl might take her own life was established; it follows that she should not be prevented from having a medical termination of pregnancy."

  In that same year, 1992, a proposed 12th amendment, which would have excluded the threat of suicide from justifying an abortion, was defeated by the Irish people. Some ten years elapsed and nothing was done by the House. In 2002, the 25th amendment to the Constitution Bill also proposed to remove the threat of suicide as a grounds for legal abortion. That was rejected by the Irish people. A further ten years elapsed and this august Chamber did nothing. Less than a week before the second anniversary of the judgment of the European Court of Human Rights into the A, B and C v. Ireland, we are discussing the report of the expert group set up to examine the judgment.

  That is the legal context or, rather, the absence of a legal context in which the A, B and C v. Ireland case was decided. As a result, girls born in the same year as me and women who went to college in the same year as me spent their entire lives subject to what is described in the European Court of Human Rights judgment as the chilling effect of the criminal law provisions in the 1861 Act, which have an impact on women and doctors during a medical consultation because of the risk to both parties of criminal conviction and imprisonment. The UN Special Rapporteur on health and the UN Committee Against Torture have also commented on the effect of criminal laws that have an impact on the health of women. When discussing the Bill tabled by Deputy Clare Daly, which he acknowledged was well-intentioned but substantially defective, the Minister for Justice and Equality, Deputy Shatter, commented that her Bill failed to deal adequately with sections 58 and 59 of the Offences Against the Person Act. In recent weeks, the Act has placed doctors in an impossible position, as alluded to in the European Court of Human Rights judgment.

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