Michael McNamara (Clare, Labour) | Oireachtas source

We have heard a lot in recent days and in particular tonight about conscience and the importance of voting with one's conscience. I salute each and every Member of this House tonight who will vote with their conscience on this important issue. However, it needs to be said that people on both sides of this House will vote with their conscience. People will vote with their conscience when they go through both of the lobbies tonight.

There is something hanging in the air that somehow only those who oppose either section 9 or the Bill in its entirety are voting with their conscience and the rest are somehow voting through political expedience. Nothing could be further from the truth. Was it conscience that led this Legislature for the nine years from 1983 to 1992 to legislate for when a pregnancy could be terminated in order to save the life of a pregnant woman? I accept that the legislation at that time would not have included suicide as a ground. Was it conscience that led this Legislature to ignore this issue or was it political expedience? Was it fear of powerful political forces in the land?

Was it conscience after 1992, when the Supreme Court clarified exactly the meaning of Article 40.3.3°, and the Chief Justice stated: "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." Of course, we heard tonight that the Supreme Court cannot order this Legislature to legislate, which is correct. However, it is important to also bear in mind that it is for the Supreme Court to determine what the Constitution means - the Constitution, as chosen by the people, not by this Legislature.

After the rejection of the referendum in 1992 to remove suicide as a ground, was it conscience that for ten years led the Legislature to do nothing? In 2002, another referendum was put to the people to remove suicide as a ground, and it was again rejected by the people. Was it conscience that led the House to again ignore the people and their Constitution? I say it was not; I say it was political expedience, and that needs to be recognised.

Was it conscience that led some people to somehow suggest that the X case was invalid and was all some kind of an obiter dictum, when of course it was not? Yes, the circumstances of Miss X changed after the judgment, but an obiter dictum is defined in Murdoch's Dictionary of Irish Law as an observation by a judge in a case on a legal question based on facts which were not present or not material.

The reality, however, is that all of the facts were present and relevant when the Supreme Court made its decision in the X case. They might have changed later, but that does not in any way render that judgment obiter. It was and remains a valid judgment.

The Cosma case was also cited as being relevant to this matter. That case related to a conflict involving a woman who threatened to commit suicide because she was being deported, whereas the X case involved a very real dilemma and conflict as between vindicating the life of a girl and the right to life of the unborn, whose life was dependent upon that girl's life. It was an entirely different scenario from that encompassed in the Cosma case. In the X case judgment, Mr. Justice McCarthy noted that the right to life of the girl in question was a right to a life in being, while the right of the unborn was to a life contingent on its survival in the womb until successful delivery.

If there was any fault with the X case judgment, it was that it was conceded that there was indeed a threat to the life of the mother through suicide. That will not be the case in the real circumstances that will come before a panel of doctors for adjudication in accordance with section 9. Section 9(1) reads: "It shall be lawful to carry out a medical procedure in respect of a pregnant woman in accordance with this section in the course of which, or as a result of which, an unborn human life is ended where ... three medical practitioners, having examined the pregnant woman, have jointly certified in good faith that there is a real and substantial risk of loss of the woman's life by way of suicide, and in their reasonable opinion [being an opinion formed in good faith which has regard to the need to preserve unborn human life as far as practicable] that risk can only be averted by carrying out that medical procedure." The reference to a "real and substantial risk" of loss of life is exactly the same term that was used by the Supreme Court in its judgment in the X case. There is no prospect that the question of whether the risk to life meets that test will be conceded. Instead it will be for three suitably qualified practitioners to determine whether there is a risk to the life of the woman posed by suicide. It is not a matter of a legal concession or something as trivial as that. It is indeed a matter of life and death. That is why three suitably qualified medical doctors will determine the issue.

I commend the Bill, including section 9, to the House.

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