Rónán Mullen (Independent) | Oireachtas source

I just want to recall what the Chairman said at the outset about seeking evidence and information without moving into the realm of opinion as much as possible. In that context, I cannot fault a word of what Dr. Kenny had to say. It was a very accurate survey of the issues. However, I would suggest that instead of talking about the "risk" of judicial intervention, one might talk about the "possibility" of such intervention. Judicial intervention is very often what preserves us from chaos.

I am sorry to have to put it to Professor de Londras that she really ought to consider whether she has served the request of the Chairman well, in terms of seeking evidence and information without moving into the realm of opinion. She appears to be constitutionally - if she will pardon the pun - incapable of using the correct term, which is "unborn". I know that foetus, which is latin, means "little one" but very often it gets used in these debates so as to exclude consideration of one party, at least in terms of their humanity. She spoke in various places about "unduly complex and detailed" constitutional provisions and about things being "cumbersome" and "impractical". She also spoke about "abortion care" but there is very little care for the unborn in the process. There is very little talk about pain killers and the late-term abortions that go on in places like Britain and Canada.

Professor de Londras also spoke about reproductive autonomy and even warned about the dangers of violations of international human rights law. It always amazes me - all of the witnesses here are lawyers - how bodies such as the European Court of Human Rights, ECHR, can tell us that we have a margin of appreciation in these areas, which in lay persons' terms means that where there is not a moral consensus, so to speak, countries can legislate according to their values and yet when I encountered the Commissioner for Human Rights at the Council of Europe, the hemicycle was told that we do not speak about human rights before birth. I am wondering if that is the position of any of the people here. Perhaps it is the position of Professor de Londras, seeing as she evoked the notion of violations of international human rights. I am concerned and would ask her to consider whether she had not been very tendentious in circumstances where we were not to have advocacy here today; we were supposed to be getting informed opinion.

I thank Ms O'Toole for her comments, much of which explained well the legal history in this area. However, I note that she spoke about "surprising outcomes" in terms which seem to me to evoke a degree of criticism of the eighth amendment. I would put it to her that there are other surprising outcomes. She mentioned the C case and the terrible circumstances around that but I understand that is one of those areas where the person involved is on the record as saying that she did not come to believe that she was well served by the operation of the X case legislation. Ms O'Toole also mentioned the D case, with which she was involved herself. She would agree with me that Mr. Justice Nicholas Kearns put it to her in that case that the issue had nothing to do with the abortion debate and as far as I recall, she agreed with him. Is it not the case that no matter whether one had the eighth amendment or not, in any jurisdiction where there is a question about withdrawing life support, such a question could have arisen? In talking about the surprising outcomes of law, could anything be as surprising as what the 1967 legislation in Britain turned into? It was supposed to provide for abortion not being prosecuted in exceptional cases but it led to an abortion-on-demand situation. Would it not be wrong to talk about this issue as though the only uncertainties could flow from constitutional delineation of matters when, in fact, legislation of any kind is equally prone to potentially surprising outcomes? In terms of suggesting that any particular approach has merit, it is true that there were different views of what the eighth amendment might lead to but aside from the X case, it seems to have succeeded in its substantial aim, which was to reserve decisions about life and death in these matters to the Irish people and to exclude judicial and political elites from changing matters as they had often done, without public consultation, in many countries. I would be interested to know if Ms O'Toole would accept the analysis that the eighth amendment was substantially successful in meeting the aim of its proponents and the 63% of people who voted for it.