Ms Caroline Simons:

Picking up on the point that my former classmate, Mr. O'Connor, has just made, we are not obliged to bring in legislation. Mr. Brady has made that point very well. We do not have to bring in legislation to give effect to every expression of an unenumerated right in the Constitution. For instance, there is a right to bodily integrity but we do not have legislation bringing that into effect. In my own submission, I referred to Kenny's decision in The People v. Shaw in which he said that the word "laws" in Article 40.3 "... is not confined to laws which have been enacted by the Oireachtas but comprehends the laws made by judges and by Ministers of State when they make statutory instruments or regulations". Therefore, we are not talking about something that is not entirely clear. This is a feasible alternative and might very much get one out of the difficulty concerning suicide, if the committee feels that is a difficulty.

Senator van Turnhout's question concerned who could exercise the right to conscientious objection, whether the woman could, and whether she would be entitled to know if a doctor has a conscientious objection to the treatment she is requesting. I agree that she is entitled to that information. However, I am a little wary of the suggestion that has arisen in the discussions over the last few days that there might be some kind of a list made of conscientious objectors. I feel that is a little sinister. I do not like the sound of that.

I do feel that the list of people to whom conscientious objection is afforded under the Bill is very limited. It is just given to midwives and doctors.

We must appreciate that under Article 9 of the European Convention on Human Rights, conscientious objection is not something that is limited in the sense that freedom to manifest religion is. I found the explanatory notes a little confusing in that regard and I will tell members the reason. Under Article 9.1 of the European Convention on Human Rights, the freedoms are expressed in an absolute way. These are the freedom of conscience, thought and religion, and when one then considers Article 9.2, the freedom to manifest one's beliefs and one's religion is limited. However, there is no express limitation in respect of conscience. Conscience is something that is, if one likes, bigger than any religious objection one might have. One need not have any religion in order to have a conscientious objection. A religious objection is something that comes from the tenets of a particular faith of which one is a follower, whereas conscience is a different thing altogether. Consequently, it is something that is very important and it is important that it be protected in the highest and most noble way for people who have a difficulty, particularly in the area of abortion, which we have found throughout the world in any legal text one might look at in this regard.

I suggest members extend the application of the right to conscientious objection not just to doctors but to trainee doctors, trainee nurses, pharmacists and anyone else who could be involved with the assisting or facilitating the process by which an abortion is carried out. I refer members to a decision that was made in recent weeks in the Doogan case. It is a decision of the Scottish Court of Session in which two midwives were relieved of any obligation to supervise nurses who were participating in abortion on the basis of their own conscientious objection. This is a good example for us to follow and I will leave it at that for the present.