Dáil debates

Friday, 9 March 2018

An Bille um an Séú Leasú is Tríocha ar an mBunreacht 2018: An Dara Céim - Thirty-sixth Amendment of the Constitution Bill 2018: Second Stage

 

10:30 am

Photo of Simon HarrisSimon Harris (Wicklow, Fine Gael) | Oireachtas source

We are here because of the courage of women like Amanda Mellet, Siobhán Whelan and so many others who publicly relived the worst moments of their lives to make us to think about why change is needed in this country. We are here knowing the tragedy which befell Savita Halappanavar and her family. We remember you, Savita. We remember Miss X. We remember Miss A, B, C and D. We remember Miss Y. We remember Miss P. We think, and we must think, of all the thousands of women from every county in Ireland who have made those lonely journeys to other countries at times of crisis in their lives because we have let them down. We think of the women who now face these crises alone and unsafe, with pills purchased online rather than with the safe medical care they need. I have heard from doctors that women are being harmed or are at risk as I speak by taking unregulated abortion pills. I cannot live with that and I cannot ignore that. If this Oireachtas facilitates a referendum, I will be casting my ballot for repeal and asking others to do the same because I cannot live any longer with a law that sees a woman or girl who has been brutally raped forced to continue her pregnancy or travel to another country if she cannot. I cannot live any longer with a law that forces families devastated by a fatal foetal diagnoses to travel to another country and bring home the remains of their much-loved and much-wanted but lost child in the boot of a car or by courier service. I cannot live any longer in denial of the realities of women travelling every day from every county in the country or buying those pills on the Internet.

The Thirty-sixth Amendment of the Constitution Bill is not just about giving the people of Ireland a say on how they believe we should now proceed. It is about giving the people of Ireland a say on how we treat women. It is about how our country treats our sisters, our wives, mothers, daughters, friends and colleagues at a time when they most need our care. I do not believe Irish people want their country to be a place that is cold, uncaring and neglectful towards women in crisis but, unfortunately, that has been the sad and painful legacy of the eighth amendment. If we want to change things, we have to make the fundamental and important change of removing it from our Constitution. A great proportion of the people who will vote on this proposal, once the Oireachtas passes the Bill before us today, have lived with Article 40.3.3° for their entire reproductive lives. Many medical practitioners have had to practise under the shadow of Article 40.3.3° for their whole careers. I think it is time - in fact, long past time - that we give all of these people, indeed all our people, the opportunity to make their voices heard. There will be those who have never had a say. There will be those who have changed their minds and would like to have another say. There will be those who wish to strongly reaffirm their deeply held views. All of these people deserve a chance to have their voices heard and respected. I believe the holding of this referendum is nothing less than a democratic imperative. In my view, we have a duty as legislators to give the people of Ireland their voice and their vote.

It was 1983 when Article 40.3.3° of the Constitution was inserted by the eighth amendment, with the thirteenth and fourteenth amendments inserted in 1992, expanding the text. In 1992, the Supreme Court decided in Attorney General v.X that the Constitution permitted a termination of a pregnancy where there was a real and substantial risk to the life of a woman which could only be removed by terminating the pregnancy. Yet, it was another 21 years before lawful termination of pregnancy was placed on the Statute Book by means of the Protection of Life During Pregnancy Act 2013. However, so many of the difficult and painful realities facing Irish women could not be addressed by that Act due to the constitutional block that is the eighth amendment. Our law as it stands permits terminations only in situations where a woman will otherwise die. It does not permit termination, for example, in the heartbreaking cases where there is a diagnosis of a foetal condition likely lead to death before or shortly after birth. It does not allow termination where a woman has been raped. It does not permit termination where a woman's health may be permanently damaged by her pregnancy. It has become clear that the Oireachtas can do nothing to help these women without constitutional change.

When this Government took office, we put a process in place to work through that needed constitutional change. The Citizens' Assembly report and the report of the all-party Joint Committee on the Eighth Amendment of the Constitution provide the thorough and considered basis on which the Government now proceeds. I reiterate my thanks to those who participated for the substantial contribution they have made. As a result of their work and the further details considered by Government, we propose, by means of the Thirty-sixth Amendment of the Constitution Bill, to delete Article 40.3.3° in its entirety and to substitute an article in the Constitution the object and effect of which would be to articulate clearly the principle that laws may be enacted to provide for the regulation of termination of pregnancy.

I wish to reassure Members of the Oireachtas and the public that this clause would not oust the jurisdiction of or restrict the right of access to the courts. Any legislation that may be enacted post referendum would, like any legislation, remain subject to review by the courts. It would also be subject to the normal legislative process and detailed scrutiny in the Houses of the Oireachtas in a similar manner to any other legislation. If the amendment is approved at the referendum of the people, it would have the effect of deleting the eighth, thirteenth and fourteenth amendments of the Constitution, which would mean that the substantive law on the termination of pregnancy, which is currently provided in the Constitution and in statute law, would henceforth be provided by way of statute law.

The Bill consists of two sections and a Schedule. Section 1 provides that Article 40 of the Constitution will be amended by the substitution for subsection 3° of section 3, the text of which is set out in Parts 1 and 2 of the Schedule in Irish and English, respectively. Section 2 is the citation provisions and states that the constitutional amendment "shall be called the Thirty-sixth Amendment of the Constitution". It also provides for the Act to be cited as the Thirty-sixth Amendment of the Constitution Act 2018. The Schedule consists of two parts. Part 1 sets out the wording of the proposed constitutional amendment in Irish and Part 2 sets it out in English. The English text reads: "Provision may be made by law for the regulation of termination of pregnancy."

I wish to return to the recommendations of the Joint Committee on the Eighth Amendment of the Constitution. A majority of members of that all-party committee accepted the five ancillary recommendations set out by the Citizens’ Assembly in its final report. The committee also made recommendations of its own, which focus on decriminalising women, free access to contraception, comprehensive sex education and obstetric care and counselling. Those recommendations are extremely important to me as Minister for Health and to my commitment to ensuring that all women accessing maternity services should receive the same standard of safe, high-quality care. We have published Ireland’s first ever national maternity strategy. The Health Service Executive, HSE, has developed national standards for bereavement care following pregnancy loss and perinatal death and bereavement teams are being established in each maternity unit. The Health Information and Quality Authority, HIQA, now has national standards for safer, better maternity services. Every woman from every corner of Ireland should expect and be able to access the maternity services she needs. Our priorities for 2018 include improving quality and safety, developing community midwifery teams and increasing access to anomaly scans. There are challenges in that regard but we intend to build capacity in our ultrasound services and additional funding has this year been provided to the national women and infants health programme to develop a more equitable and consistent antenatal screening service.

The joint committee also made important recommendations regarding counselling and support facilities for women during and after pregnancy. I wish to inform the Dáil that the Government has agreed that I will return to it in the coming weeks to seek approval for a series of measures to further support women and improve access to counselling, contraception and perinatal care. I have established a group under the chairmanship of the chief medical officer to address the ancillary recommendations and formulate an effective and comprehensive response to the issues raised by the committee. Work is under way to consider the nature and scope of a free contraception service and what the introduction of such a service would involve. That has thus far established that provision of free access to contraception methods, which is currently limited to those with eligibility through the primary care reimbursement services, would require enabling primary legislation. Work to consider costs and other implications in that regard is continuing. If our underlying principle is that abortion should be safe, legal and rare, we must do all we can to reduce the number of crisis pregnancies and support women in every way. That will be the focus of the proposals I will bring to Government in approximately one month’s time.

The establishment of a legislative framework for the regulation of termination of pregnancy is a serious and challenging undertaking but it must be done because we cannot deal with the complexities of women’s health and lives through a few rigid lines in Bunreacht na hÉireann. As we embark on a debate to replace a constitutional provision with a legislative framework, it is understandable that people would want to know what would follow that change. However, I wish to re-emphasise that any discussion about legislation is merely hypothetical unless a referendum to remove the eighth amendment is passed. This morning, I am publishing a short policy paper, which the Government approved at its meeting yesterday. That document updates Members and the public on the work being done by my Department on the recommendations of the all-party committee. It affirms the intention to permit termination of pregnancy in cases where the life or health of a pregnant woman is at risk, with no distinction between risk from physical or mental health. It confirms that a process similar to that set out in the 2013 Act would be required, whereby in such cases assessments would be made by two appropriate medical practitioners. It proposes to make provision for access to termination of pregnancy on an emergency basis on the assessment of one medical practitioner. It proposes to permit termination of pregnancy on the grounds of a foetal condition which is likely to lead to death before or shortly after birth. In such cases, two appropriate medical practitioners would be involved in the assessment, in recognition of the fact that those complex medical cases are currently managed by multidisciplinary teams. Women in those awful, heart-breaking situations will consider different options. Many will choose to continue with the pregnancy, while others may not. In those cases, the woman and her doctors are best placed to make such a decision and I trust them to do so.

In line with the recommendation of the all-party committee, it is proposed to permit termination up to 12 weeks of pregnancy without specific indication. However, I am proposing the introduction of a time period that is required to elapse between the assessment by a medical practitioner and the procedure being carried out. Contrary to some assertions, such provision would not make Ireland an outlier internationally, although I accept it represents a quantum leap from the current position, whereby we have one of the most restrictive regimes in respect of termination and are pegged at a similar level to Saudi Arabia. The proposed legislation is not without restriction. I believe it reasonable for there to be a brief period of time after the woman has her first consultation with her doctor in order to allow all the options to be considered and to facilitate informed consent. Informed consent is not an unusual medical principle. Only medical practitioners on the register of the Medical Council would be permitted to assess and, where appropriate, carry out a termination. Such medical practitioners are subject to the professional and ethical standards of the Medical Council and are governed by the provisions of the Medical Practitioners Act 2007. It is important to note that doctors operate in a regulated profession and, when considering any structure that may be put in place to operate termination of pregnancy in Ireland, it is important to understand that the normal medical ethics and best practice which we highly value - and recognise are practised by our doctors - will apply.

Where a foetal condition is likely to lead to death before or shortly after birth, or where maternal life or health is at risk, it is proposed that a gestational limit would not be included. Attending medical practitioners are best placed to make assessments and decisions on how to best proceed based on individual clinical situations. However, the spectre of late or full-term abortions is not the reality and is offensive to our medics. It is important to be clear and truthful that, in cases where the foetus is viable, early delivery and the full range of neonatal care are the reality. Members should not take my word for that but, rather, should talk to those working in our maternity hospitals. We should not misinform the public on that reality.

Although termination of pregnancy would be lawful in the circumstances set out, it is proposed to retain the offence of intentional destruction of the unborn in defined circumstances. Abortion will remain unlawful in Ireland outside of the defined circumstances in any applicable legislation. However, a woman who procures or seeks to procure a termination of pregnancy for herself would not be guilty of an offence. We should not seek to criminalise vulnerable women in such situations.

It is proposed to provide in legislation for a number of issues not covered by the recommendations of the joint committee. These would include setting out provisions similar to those in the 2013 Act on consent and permitting conscientious objection. In line with the 2013 Act, it is also proposed to require certification by the appropriate medical practitioners in all cases of termination of pregnancy, and notification of each procedure by the medical practitioner to the Minister for Health. Similarly, it is proposed that provision would be made for a formal review process for a woman in certain defined circumstances. Reports on notifications and reviews would be published annually by the Minister and the HSE, respectively, as is currently the case under the 2013 Act.

I have outlined the Government's position and thinking on the issue but I wish to be clear that the Thirty-sixth Amendment of the Constitution Bill is not about what provisions we think legislation on termination of pregnancy should contain. Rather, it is about giving the citizens of Ireland the opportunity to exercise their democratic right to determine what is in our Constitution, which contains the founding principles of our State. I do not doubt the motivations or sincerity of those who wish to retain the eighth amendment. In fact, I do not doubt that we share some motivations. I do not like labels but I consider myself pro-life. I do not know anyone who is not. I do not know any woman or doctor who is not. I share the desire for the unborn to be protected in every way possible but that desire does not and cannot negate reality. The retention of the eighth amendment would not negate the fact that abortion is already a reality in this country and for Irish women.

Retaining the eighth amendment will not prevent it from happening. If the purpose of the eighth amendment was to stop abortions in Ireland and to stop Irish women accessing abortions, it did not achieve that. All it achieved was pain and suffering. In this country, whether we like to hear it, denying reality has at times become a national bad habit. Denying realities does not make them go away. Instead it just leads to hurt and harm. Not only is the reality of abortion not going away, it is one that is now risking more hurt and harm to our women. We have to address that reality and it is possible to do so with compassion, with consideration and with care.

Now, as we kick off this debate today, a debate to empower the Irish people to have their say, as we sit here in these comfortable brown leather chairs in Dáil Éireann, think of the nine Irish women in our ports and airports today heading off on that lonely cruel journey. Think of the three women, at least, in their homes, their bedrooms or wherever else taking the abortion pill today without any medical support. They are the women I am thinking about today.

I commend the Thirty-sixth Amendment of the Constitution Bill to the House. I look forward to the debate and hope we can have cross-party and cross-group co-operation to facilitate the people of Ireland having their sovereign say on this matter in the month of May. Let us let the people have the debate and let us let the people make their decision.

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