Lynn Ruane (Independent)
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I echo what Deputy Bríd Smith said regarding her gratitude to the Chairman and the wealth of experts who have appeared before the committee.

I also acknowledge two Members of my own group, Senators Higgins and Kelleher, who I suppose moved out of the way for me to be able to be here today. They felt as passionate and have worked for a lot longer on the issue than have I, and I am grateful that I was able to be part of this process.

When I sat down to think about what I would say today, I decided to prepare a summary of the evidence so far and what I have taken from that to illustrate my intentions. I will read directly from that script so that it is clear. If I was to speak off the cuff, I would ramble and forget most of it.

The Citizens' Assembly recommendations must set the context of our deliberations in the future. It is a representative, deliberative body well informed on the issues. They decided as they did for a reason. We heard extensive testimony from Ms Justice Laffoy on the make-up, structure and approach taken by the Citizens' Assembly. We can all agree it was a robustly fair and strong process.

We are, however, the elected body which makes the final decision. We can accept or reject recommendations but must provide justification for why.

I came in here with a viewpoint and a position. I supported the recommendations of the Citizens' Assembly in most respects. I listened to evidence and I challenged some of my views. To broadly comment on the evidence we have heard, we can say that rigid legislation and excessive detail or lack of flexibility given to doctors is bad practice. Grounds-based abortion access is bad practice. It might be politically tempting to legislate only on narrow grounds but it just is not practical.

Our modular approach was important; the constitutional and legislative grounds are separate. It may have been criticised in some quarters but it was important to vote when we did once all the constitutional evidence was heard.

For the remainder of my contribution, I will split my comments on the recommendations into the separate constitutional and legislative considerations.

In terms of the Constitution, the assembly recommended the full repeal of Article 40.3.3° and its replacement with a constitutional provision authorising the Oireachtas to legislate in this area. Based on the transcripts provided to us of the assembly proceedings and during our engagement with Ms Justice Laffoy, it was clear that the citizens wished for the entire article to be removed and, for the avoidance of doubt, that a replacement provision be made to ensure that the Oireachtas was able to legislate with legal certainty in this area.

The need for Article 40.3.3° to be repealed or deleted was a consistent theme of the evidence we heard across the constitutional, legal and medical fields with Dr. Rhona Mahony, Professor Arulkumaran, Ms Mary O'Toole, senior counsel, Ms Leah Hoctor, Dr. David Kenny, Professor Veronica O'Keane, Professor Fiona de Londras and Dr. Peter Boylan all agreeing that the article needed to be removed in its entirety. For me, based on the evidence we heard, the argument for repeal has been made convincingly.

In terms of the replacement constitutional provision and the associated issue of legal certainty, I believe we can accept the clear expressed intentions of the assembly rather than the exact detail of its constitutional recommendations. We heard consistent evidence that medical practitioners need flexibility and space to manoeuvre in order to provide best-practice abortion services.

Affording flexibility to medical practitioners stands in direct tension with the issue of providing legal certainty. As a result, the committee must make a judgment between the two and my position would be that ensuring doctors are not operating under the chilling effect of heavy criminalisation is more important than ensuring legislation is impervious to judicial review. I am also uncomfortable with the idea that abortion legislation would be immune from challenge in the courts, even in the case that the Oireachtas passes legislation that I would personally support. The separation of powers is a key underpinning of our democracy and we interfere with it at our peril. As a result, I believe we should take the intention expressed by the assembly and translate it into a constitutional and legislative arrangement that more comfortably fits into the relationship between our Judiciary and Legislature in its current form.

It also is clear, on reading the transcripts, that a main reason the Citizens' Assembly recommended a replacement provision was due to the heavy focus on the paper of Brian Murray, senior counsel, and his description of the potential legal certainty surrounding the right to life of the unborn following repeal. I do not think we should insert new text into the Constitution based almost solely on one legal paper. Considering all of the other legal opinions we have heard on this issue, the risk of high legal uncertainty is not a likely scenario.

I believe we should recommend the repeal of the entirety of Article 40.3.3°, as recommended by the assembly, but instead of replacing it, should shift our focus to making the accompanying legislation as legally robust and as constitutionally sound as possible in order to ensure as much legal certainty as possible while still retaining the possibility of judicial review.

In terms of how that fits into the options presented to us by the committee's legal counsel, my position is that we should recommend option 1. I would choose that over option 3, which is repeal with legislation published in tandem, only because I believe the latter is a political decision rather than a legislative one.

I believe option 2, which is entrenching legislation in the Constitution, is completely unworkable. As Deputy Browne has said in previous discussions, when entire legal cases in the courts can hinge on the placement of a comma in legislation, the idea of putting complex legislation into the Constitution permanently cannot be considered as a viable option.

Option 4, which is repeal and replacement on specific grounds must be excluded for the same reason. It is inflexible, too explicit and is problematic for the same reasons as the eighth amendment. Constitutions are intended to be general and non-specific to allow for the Oireachtas and the Judiciary to legislate and interpret. This option precludes that.

In the same vein, option 5, which is repeal and replace on broad grounds or a rebalancing of rights, should also be excluded. The most significant problem with the eighth amendment is that it creates an artificial balance of rights between the unborn and the woman. Any attempt to rebalance rights between them with constitutional text would suffer from the same problems and would remove the ability of the courts to decide this balance of rights themselves as they do with all other conflicting constitutional rights.

While option 6 is less problematic than some of the other options, it suffers from the possibility of excluding abortion legislation from judicial review which, as I have already articulated, interferes with the balance of powers and would put abortion law into the same category as law passed in a state of war. This is inappropriate and a bad precedent to set.

Overall, all the options in terms of constitutional change have strengths and weaknesses but I will be supporting option 1, the repeal simplicter with no replacement for Article 40.3.3° in the Constitution and I call on other members to support this option.

Moving to the legislative considerations, we have been given 13 recommendations from the assembly in which termination of pregnancy should be legal. They are, without restriction as to reason up until 12 weeks, where there is a risk to life or health, physical or mental, where pregnancy is a result of rape, where there is a fatal foetal abnormality and on socioeconomic grounds.

As a starting point, it should be made clear that if this committee strays from those recommendations, whether it is to reject the socioeconomic grounds, move to shorter gestational limits or reject on request altogether, this will not stop abortions on these grounds. Abortions in these circumstances will still happen because we will continue to export our human rights obligations to the women of this country to our nearest neighbours. What it will do, if we reject these grounds, to quote Emily Logan in her evidence in this committee, is perpetuate "a two-tier system whereby women who cannot afford to travel are put in a situation where their autonomy is diminished and their ability to make their own decisions about their own health care has been limited by the State." I ask all committee members to think long and hard about that when we vote next week. Moreover, we cannot control the availability of the abortion pill. All we can control is whether women take it legally and safely or alone without medical support.

On the recommendations themselves, based on the evidence we have heard on these grounds, it is clear that only legislating on narrow grounds does not work. It is not practical and any attempt to legislate narrowly drastically reduces access and means we cannot provide best-practice care for women.

We have heard continually from medical practitioners that words such as real and substantial risk; serious risk; and severe, lethal and fatal abnormalities are legislative terms. They are impossible terms to operate under in medical practice. Decisions relating to terminations must be made privately between women and their doctors and not by legislators.

I believe most of us would agree that terminations of pregnancy resulting from rape are an absolute necessity as a ground for abortion access. We heard from three experts who appeared before the committee, Mr. Tom O'Malley, Ms Noeline Blackwell and Dr. Maeve Eogan, who all agreed that such a ground is legally and practically unworkable. As soon as a verification process is introduced for whether rape has taken place, insurmountable barriers are instantly placed for rape victims to access abortion.

The only way to allow for access to abortion in certain exceptional circumstances is to allow for abortion on request, within reasonable gestational limits, because if all women are able to access abortion, this includes women who have experienced rape or a foetal anomaly without the State performing invasive verification or depriving them of their right to privacy. If members present decide to recommend that abortion should be made legal in certain circumstances or only have a mandate to go so far, the only way to absolutely ensure access in these certain circumstances is to expand on-request access. If we do not expand abortion access to include all the grounds recommended by the assembly, poor, marginalised and minority women will pay the price.

This is a momentous decision with which we are tasked. It is an historic moment. I hope that throughout the voting and obviously moving towards a referendum campaign, we can replicate the solidarity that has come to light in this committee, especially across the women and men. Obviously I hope we can pass a referendum. We have set a good basis in this committee and I believe we send a strong message to the Dáil and the people that it is time to take women's health out of the Constitution.