Leo Varadkar (Dublin West, Fine Gael) | Oireachtas source

The Private Members' Bill provides for a referendum to delete the eighth amendment to the Constitution and, in so doing, to remove the constitutional right to life afforded to both the mother and the unborn child and replace it with nothing.

Deputy Coppinger states in her Bill that the effect of this proposed amendment to the Constitution will be of "entitling the legislature to provide legislation for the provision of abortion in this jurisdiction". Of course, it could also entitle the Oireachtas to revert to the 1861 legislation or bring in new prohibitions that currently do not exist on women seeking an abortion.

We have had two debates recently on the issue of abortion on foot of legislative proposals by Deputy Clare Daly - one before Christmas and one in January. During those debates I gave my own views on this particular issue. These are now well known and have been debated in detail in this House. I do not intend to go over them again, but to summarise, on both those occasions I indicated that I consider myself to be pro-life, I accept that the unborn is a human life with rights and I do not support abortion on request or demand. I also stated, and sincerely believe, that this is an issue on which there are few certainties and on which families and doctors often find themselves having to make extremely difficult ethical and clinical decisions.

As Members might recall, because of my experience as a doctor and, in the recent past, as Minister for Health, I have come to the conclusion that the eighth amendment is too restrictive, as it has no regard for the long-term health of the mother. It also forces mothers and their partners to bring to term children who have no chance of survival outside the womb or for long afterwards. However, just as on the last two occasions, I cannot support this legislative proposal, which affords neither protection nor rights to the unborn.

First, it is unclear how one can say that the effect of the Bill will be to entitle the Oireachtas to legislate for abortion when the Oireachtas has already clarified the law on abortion in this jurisdiction in the Protection of Life During Pregnancy Act 2013. As Deputies are all aware, Article 40.3.3° reads as follows: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right."

In Attorney General v. X in 1992, also known as the X case, the Supreme Court considered the meaning of the eighth amendment in the circumstances that arose in that case. A majority of the members of the Supreme Court held that if it were established as a matter of probability that there was a real and substantial risk to the life, as distinct from the health, of the mother and that this real and substantial risk could only be averted by the termination of her pregnancy, such a termination was lawful.

A number of referendums have taken place on Article 40.3.3°, and the right to information and the right to travel were introduced in 1992. The people voted on two occasions against proposals to amend the substantive text. In December 2009 the European Court of Human Rights heard an application by three women in the A, B and C case to the effect that it was a breach of their rights under the Council of Europe's Convention on Human Rights for the Irish State not to provide abortion in circumstances in which a woman wishes to have one. In its judgment, the Court held that there had been a violation of in respect of C. The violation in this case was "the absence of any implementing legislative or regulatory regime providing an accessible and effective procedure by which the third applicant could have established where she qualified for a lawful abortion in Ireland in accordance with Article 40.3.3° of the Constitution". The Court also ruled that "no criteria or procedures have been... laid down in Irish law... by which that risk is to be measured or determined, leading to uncertainty..." and held that further legal clarity was required.

One of the commitments in the programme for Government was to examine the judgment in the A, B and C v. Ireland case and to make recommendations on how this matter should be properly addressed. This commitment has now been fulfilled by the 2013 Act. The Protection of Life During Pregnancy Act 2013 was enacted on 30 July 2013 and commenced on 1 January 2014. This Act regulates access to lawful termination of pregnancy in accordance with the X case and the judgment of the European Court of Human Rights in the A, B and C v. Ireland case. Its purpose is to confer procedural rights on a woman who believes she has a life-threatening condition, so that she can have certainty as to whether she requires this procedure or not. The Act upholds the right to life of the unborn where practicable, and the right to life of a pregnant woman whose life is threatened by her pregnancy, as required by Article 40.3.3°. The Act also creates procedures which apply to the lawful termination of pregnancy.

The objectives of these procedures are, first, to ensure that where lawful termination of pregnancy is under consideration, the right to life of the unborn is respected where practicable, and, second, to ensure that a woman can ascertain by means of a clear process whether she requires a termination of pregnancy to save her life. The Act received very careful consideration by the Houses of the Oireachtas and the Joint Oireachtas Committee for Health and Children, including three days of public hearings. Following the judgment in the A B and C v. Ireland case, the State submitted eight action plans, or reports on its progress in the implementation of the judgment, to the Committee of Ministers of the Council of Europe which supervises this process. Having reviewed the measures adopted to address the judgment, the Committee of Ministers were satisfied that the Government had given effect to the ruling by introducing the Protection of Life During Pregnancy Act 2013, related regulations and guidance document. On 4 December the committee concluded its supervision of Ireland's implementation of the judgment in A, B and C v. Ireland, and the case is now closed.

Therefore, to conclude this point, it is inaccurate to say that Deputy Coppinger's proposals will entitle the Oireachtas to legislate for abortion. The Oireachtas has now clarified the law on abortion in Ireland through the Protection of Life During Pregnancy Act 2013. As I have stated in this House a number of times, I believe that this matter should be dealt with by the 32nd Dáil, when parties have a fresh mandate from the people for their policies. I do not want it to be an election or pre-election issue. It needs to be dealt with sensitively.

What I believe is required now is a considered and careful public debate to find a consensus. We will shortly be voting on two proposed constitutional amendments, one on marriage equality and one to reduce the age at which candidates are eligible for election to the office of President from 35 to 21. These proposals have come about following a thorough process of debate and consideration by a Constitutional Convention involving citizens.

To conclude, I oppose this Bill, first, because it is unnecessary as legislation is already in place, and, second, because it is incomplete. It removes existing rights for women and the unborn without undertaking an analysis of the policy and legal implications of such a change to our Constitution or enabling legislation. I believe it would be irresponsible and unjust to ask the people to vote on an amendment without clearly delineating what would replace the existing provisions, and I urge Deputies not to support this Bill today.

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