3rd December 2001
By the time you read this, the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001 will have been passed by Dáil Éireann and will probably have had whatever cursory hearing it will get before the Seanad, too.
It was unfortunate for the Government that in the same week as it was using the guillotine to prevent further debate in the Dáil on the Bill Deputy Brian Lenihan's excellent committee reviewing the constitution produced a report which said all legislation with constitutional implications should be fully debated in both Houses of the Oireachtas. The Bill went on to Committee Stage, not before the whole House as promised, but before a committee of the House, the Committee for Health and Children.
The Taoiseach promised a referendum to the four Independents who keep the Government in power, so a referendum we must have whether we need one or not. If the legislation concerned was not to be put into the Constitution I would be quite sanguine about it because if there were any results we had not expected we could change them in the course of a day. However, once the amendment is in the Constitution any unexpected affects are incredibly difficult to alter. A few months ago I wrote to the Taoiseach and said "we know where we are now, sort of, why can't we leave things alone?" Any areas that needed legislation were minimal. We are now about to bring in a constitutional amendment in a way one has never been brought in before. A piece of legislation is to be passed by both Houses, the President is refused the right to refer it to the Supreme Court for its opinion and then the piece of legislation is to be put to the people as an amendment and if it is passed more legislation must be passed within 180 days.
I opposed the 1983 referendum to include a right to life for the unborn, not because I wanted to introduce socio economic abortions into Ireland but because I felt the wording could easily be interpreted in exactly the opposite way as that which those who were promoting it intended. And isn't that exactly what happened 8 years later? That amendment was 43 words long - imagine what the Supreme Court will be able to find in the 12 pages of the present Bill which, as a whole, is to be considered an "amendment" to the Constitution!
Dana Rosemary Scallan, M.E.P., Judge Rory O'Hanlon and the transformed Youth Defence are quite correct in saying the 1983 amendment will be weakened by the passing of this amendment. It was always considered by those who promoted the 1983 amendment that the protection of the unborn was from the time the egg was fertilised. The new amendment will only bring in protection from the time of implantation which is not a precise moment. In the debate on the 1983 amendment I said I did not believe it was possible to protect and vindicate the rights of fertilised eggs. Many are lost naturally so, for myself, using implantation as the beginning of a pregnancy is not a problem. But I am amazed at all those who insisted the fertilised egg must be protected from the moment of conception accepting this situation. Also, this section is said to legalise the morning after pill and the IUD. Of course I feel both should be legal, but does this legalise medical abortifacients, too, if taken early enough in pregnancy? Who can say whether the implantation had taken place or not? What if a girl has a delayed period and takes her Granny's cytotec? Can she be described as having tried to procure an abortion or not? If the answer is "yes" she is liable to a criminal charge with the possibility of a twelve year jail sentence.
Suicide and the rolling back of the Supreme Court decision in the X case, which allowed the threat of suicide as a life threatening situation for a pregnant woman and, therefore, an abortion was permissible, is said to be at the core of this legislation. Now I have never seen anyone suicidal and pregnant but then I never envisaged the X Case or the even worse C Case. I say even worse C Case because in the X Case supportive parents were involved but there seemed to be many family problems for Miss C. I do know a woman, however, who had very bad post natal depression after both her pregnancies, I mean so bad I don't think she has ever really got over it. Years ago she told me she would kill herself if she ever got pregnant again because her depression was so terrible. Mercifully I would say she is not of an age to get pregnant any longer and she is still with us. But what if she had?
It is necessary to remove the suicide clause I am told in case doctors go mad and start doing socio-economic abortions under the false claim of suicide. Not one solitary doctor has attempted to do this as far as I know since the X Case so why would they start now? How much easier to send women to England.
I am not trying to extend the grounds on which abortion can be carried out here. During the 1983 debate I said there were very rarely life threatening conditions in pregnancy when an abortion was the only way to save the woman's life. Many said then this was not so but, lo and behold, here we are now with this being admitted and put in the legislation although, as usual, the abortion is described as "medical treatment".
Then there is the definition of abortion, "the intentional destruction by any means of the unborn human life after implantation in the womb of a woman". This appears in neither lay or medical dictionaries which is a poor start for a word to be put into our Constitution. How can de Valera's grandchildren allow this sort of thing to happen to his Constitution? It does not give any end point in the pregnancy after which the destruction of the unborn child would not be considered an abortion, so I suppose it fits in very nicely with partial birth abortions in America right up to term for foetal abnormalities.
The "medical procedures" as life saving abortions are called must be carried out in an "approved place" which has yet to be defined. Suppose one has a patient about sixteen weeks pregnant at the back of the Inagh Valley, blocked in by snow and she starts bleeding. If the foetal heart is still present it looks as though it would be illegal to complete this spontaneous abortion. There is no provision for such an emergency. We have no emergency medical helicopter so good luck to both mother and doctor. All I have ever asked is that the life of the mother should and must be protected and I don't see this "Protection of Human Life in Pregnancy" as necessarily doing that.
Many doctors feel this amendment will give them additional protection in dealing with those difficult cases where aborting the pregnancy is the only course which will save the mother's life, but I am not sure it will. Between the Supreme Court judgement in the X Case and the Ethical Guidelines of the Medical Council we are probably better off.
Space does not allow me to tell you of further problems I see with this piece of legislation - read the debate of the Committee Stage if you can. It is on the Oireachtas website.
Vote 'No' if we ever get to the referendum. We are putting ourselves into the hands of the Supreme Court again and as happened before we don't know how things will turn out.
Senator Mary Henry, MD
