Brendan Howlin (Wexford, Labour) | Oireachtas source

I, too, am pleased to make a contribution to this important and perhaps historic debate. I do so as leader of the Labour Party and the first speaker in this debate who was a Member of the Houses of the Oireachtas in 1983. At that time, I was a newly appointed Member of the other House and I was present in the Seanad on Wednesday, 4 May 1983 when the then Senator Mary Robinson moved an amendment on behalf of the Labour Party group. The amendment stated that Seanad Éireann refused to give a Second Reading to the Eighth Amendment to the Constitution Bill on the grounds that the legislation was so unclear and ambiguous that it was not a proper subject for a proposal to be submitted to the people in a referendum.

That was the unanimous view of Labour Party Senators, of which I was one. The Taoiseach at the time, Garret FitzGerald, described the constitutional amendment Bill as dangerous and unacceptable. At the same time, he urged Fine Gael Senators to abstain on the Labour Party amendment. The amendment to refuse the passage of the eighth amendment Bill in Seanad Éireann was lost by 18 votes to 15, with Fine Gael Senators abstaining and all Fianna Fáil Senators opposing the Labour Party amendment. At the time there were three Northern Irish Members of the Seanad, all of whom supported the Labour Party position.

I believed then, as I do now, that the Constitution is not the place to determine our laws on abortion. Others have said that Ireland has changed radically in the past 35 years, and so it has. The issue of abortion, throughout this period, has been divisive and challenging. Unlike any other issue of social policy, it has not been those most directly affected who have been involved in the debate - it has not been the women. We have heard how at least 170,000 women since 1980 have availed of abortion services outside the State. For the most part, they have been silent and unseen. Their voices and experiences have gone largely unheard. Often, they have been unable to discuss their choices or health needs with friends, relatives or even medical practitioners. Instead, by and large, the debate 35 years ago and since has been led by individuals and groups who come to the issue with moral certainty and crusading zeal. In that context, I commend the work undertaken with care and openness by the Citizens' Assembly and the all-party Oireachtas committee. In particular, I commend the work of the chairperson of the committee, Senator Catherine Noone.

The report of the committee is clear and thorough. The committee addressed two fundamental issues. First, it examined the requirement or otherwise for constitutional reform. The eighth amendment of the Constitution was passed on 7 September 1983 after what the report characterised as a bitterly contested referendum. I believe that characterisation is accurate, indeed understated. I remember it. I was going to include some of my memories of that time but I decided that would only contribute to further divisiveness. Anyway, the experience of that campaign impacted on all political discussion of the issue subsequently. I welcome the change in atmosphere thus far, although judging from some e-mails and letters already received, I doubt if that will continue.

The recommendation of the Citizens' Assembly was to replace Article 40.3.3o with a provision that explicitly authorises the Oireachtas to legislate to address termination of pregnancy, any rights of the unborn and any rights of pregnant women. I strongly agree with the view taken by the Oireachtas committee regarding the effect this proposal would have on the separation of powers. The recommended approach of the committee, that is, to simply repeal Article 40.3.3o is, I believe, a better and safer course of action.

The first and fundamental issue is that the Constitution is not the appropriate place to deal with an issue as complicated as abortion, impacting as it does on evolving medical practice and technology. I believe this view is widely supported. In many ways, therefore, it is not what will replace Article 40.3.3o by way of legislative provision in the event that the Oireachtas was free to legislate in this matter that has been the greater focus of the Oireachtas committee. The first issue must be to allow the Oireachtas to make those decisions and to remove Article 40.3.3o from the Constitution.

Whatever proposals we determine – I intend to deal with them in some detail – will evolve over time in any event. Many have argued prior to 1983 and since that a constitutional provision is required because neither the Oireachtas nor the Judiciary can be trusted on this issue. The original objective was to tie the hands of elected Deputies and Senators to prevent change in our abortion laws, regardless of changes in medical practice, knowledge or understanding as well as changes in drugs and general access to drugs.

The constitutional provision of 35 years ago remains unaltered. Given all the experience of the past three decades, it is surely now time for change. The Oireachtas must be given scope to address these critical issues in an evolving world. The members of the Citizens' Assembly and the Oireachtas Committee showed how these matters can be addressed calmly and thoroughly having regard to the complexity surrounding abortion and maternal health. They provided proof, if proof were needed, that the Oireachtas can be trusted and, equally important, should be trusted to act in the best interests of all the people.

The legislation that should be enacted in the event of Article 40.3.3o being deleted from the Constitution was a significant focus of the committee. A total of 13 recommendations from the Citizens' Assembly relating to the grounds on which termination of pregnancy might be lawful were considered in turn. The committee also examined the operation of the Protection of Life During Pregnancy Act 2013. In general terms, I believe it is fair to say that the Oireachtas committee did not recommend change as far-reaching as that recommended by the Citizens' Assembly, a point made by Deputy Kelleher. Clearly, the Citizens' Assembly recommendation that abortion should be lawful up to 22 weeks' gestation on socioeconomic grounds was not supported by the Oireachtas committee. Instead, the committee recommended that the law should be amended to permit termination of pregnancy with no restriction as to the reason, provided that it is availed of through a GP-led service delivered in a clinical context as determined by law and licensing practice in Ireland with a gestational limit of 12 weeks. Although this recommendation is, as I said, far more restrictive than that proposed by the Citizens' Assembly, it is still likely to be the most controversial of the committee recommendations. For that reason, I believe it deserves most careful consideration and an examination of the reasoning that brought the majority of the committee members to this conclusion.

In truth, to fully understand the development of thought it is necessary to have listened to or read the submissions and presentations to the committee. The report condenses this important and vital work into a few short paragraphs, but it is clear from the work of the committee that, in the context of any move from general declarations of principle to actual practical law, the committee recommendation makes sense. How can we achieve the objective to allow for abortion in the case of rape or incest in any other way? It cannot be that we need a police investigation and court prosecution to have concluded before determining that an abortion can be lawful.

God protect us from going down that route again. To attempt to legislate for rape or incest on a stand-alone basis would open a nightmare world for already traumatised women. It would involve gardaí and lawyers when what is needed is medical and psychological support. The reopening of the appalling circumstances surrounding the Kerry babies case should be evidence enough of that. Our laws have to be practical, enforceable and humane. The committee’s recommendation in this regard is, therefore, I believe, the correct one. That view is immeasurably strengthened by the fact of life of the broad availability today of abortion pills. Unless it is our intention to arrest and prosecute every woman who imports or takes such pills, we need to face up to that reality. While there may be some who would advocate such arrests and prosecutions, I have no doubt that such action would be repudiated by the majority of our people, not to mention the implication for women’s rights in international law. When the matter is carefully examined, it is clear how and why the committee came to make this recommendation.

Another area where the Oireachtas committee differed with the Citizens' Assembly was in the assembly's recommendation allowing for abortion up to 22 weeks' gestation in the case of foetal abnormality that is not likely to result in death before or shortly after birth. The committee’s view, with which I agree, was not to accept this recommendation. The committee recommended that provisions in the Protection of Life During Pregnancy Act 2013 needed to be amended. That Act was drafted under the constraints of Article 40.3.3° of the Constitution. Many of us, including Members such as myself who were in government when the Act was enacted, will be very happy to see the Act amended in the event of constitutional change allowing us to do that.

There is much more in the report dealing with sex education, obstetric care and counselling, and contraception. It is a very important and welcome body of work. It is now time for the rest of us in the Oireachtas, those who were not members of the committee, to do our bit. We need to address, without delay, the steps to be taken to allow the people to have their say before the end of May. Talk of slipping into June is not acceptable and we have already received large volumes of correspondence from young people who will be out of the country in June, having finished their studies. Students start their leaving certificate on 6 June and it would be perverse if the very people who will be most affected are excluded from having their say, for the first time, on this truly important issue.

We need to address the steps to be taken to allow this to happen before the end of May. The Tánaiste today set out the path before us. The Minister for Health is to bring memoranda before Cabinet between now and March. We need to pass the referendum Bill. We need to establish a referendum commission and allow it adequate time to do its important work. Equally important, in my opinion, is to ensure that all of this is done in time for a May referendum. Members have commented favourably on the Minister's speech on this issue and I thought it was a very thoughtful speech. However, it was a speech that said we needed to bring about change, not a speech that said, "I am the Minister and this is what I intend to do. Having considered the report, this is what I am going to recommend to colleagues." We need to get to this point. We have had decades of debate and there has been concentrated debate in the Citizens' Assembly and the Oireachtas committee in the past year. It is now time to set out the timelines for achieving this objective and to allow the people to have their say.

I began by reflecting on the debates in these Chambers in 1983. Seared by the campaign that followed, I express the hope that we can do things differently and more respectfully now. In the intervening years, as Minister for Health I had my office and home picketed. Children’s coffins were brought to my Wexford office and things that I will not mention were posted in my home town. I hope that the past is another country and that it is possible for all of us to listen as well as speak and to acknowledge difference without vile attack. For my party, that is what I pledge. The Labour Party accepts the Oireachtas committee report and its recommendations. We will campaign for change with vigour but with respect.

My party has been at the forefront of social change for as long as I can remember, in campaigns that look amazing in retrospect such as to provide for legal contraception, to allow for divorce and, most recently, to provide for marriage equality. All, in their time, were strongly resisted. All, in their time, came to pass. Often we discover that the people’s thinking on social policy is more advanced than that of the elected Members of these Houses. Let the people decide this matter. Let us also work to ensure that they can do so in an atmosphere of reason and without interference from groups or elements outside our State. No doubt many groups will engage in this campaign and some will seek to characterise it as something which it is not. What is in question here is an important matter of social policy for our people, not the contest of State and church or the defeat of anyone. Simply and importantly, it is a matter of supreme importance to thousands of our citizens, as families and individual women try to make the best possible decision for themselves and their loved ones. After decades of fear, the people in 2015 overwhelmingly passed a constitutional amendment to allow same-sex marriage. For many who voted yes, that was a journey of self-discovery and tolerance. Perhaps it is not too much to hope for something similar on this issue too.

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