Colm Burke (Fine Gael) | Oireachtas source

I welcome the report published by the expert group under the chairmanship of Mr. Justice Seán Ryan. We must introduce legislation together with regulations. This is one of the options set out in the report.

I wish to outline my position as clearly as possible. I might bore some listeners in quoting case law in support of my argument, but this legislation would not introduce abortion on demand.

It would provide the clarity that is urgently required in this area. The expert group, as the Minister outlined, consisted of people with expertise in the medical, legal and administrative fields. The European Court of Human Rights in the A, B and Cv. Ireland case confirmed that Article 40.3.3° of the Constitution is not inconsistent with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The court found that there had been no violation of the rights of Ms A and Ms B under the convention and it dismissed their applications. It found, however, that there had been a violation of applicant C's right to private and family life contrary to Article 8 of the convention. The court held that there was no accessible and effective procedure to enable her to establish whether she qualified for a lawful termination of a pregnancy in accordance with Irish law.

As a result of the judgment the Government established the expert group to advise on how to implement the judgment of the European Court. The expert group was asked to recommend a series of options on how to implement the judgment taking into account the constitutional, legal, medical and ethical considerations involved in the formulation of public policy in this area and the overriding need for expeditious action.

In the case of Attorney General v. X, otherwise known as the X case, the Supreme Court held that the Constitution permitted abortion in certain limited and particular circumstances, namely, where there was a real and substantial risk to the life of the woman which could only be removed by terminating the pregnancy. The case in which the judgment was given concerned a girl of 14 years of age and the threat to her life was from suicide. After the judgment in that case, two referendums were held which tried to remove suicide as a ground for abortion and in both of these referendums the proposal was defeated. Therefore, as we stand the X case decision is the law of the State as declared by the Supreme Court. It has been binding on all of the courts for more than 20 years. In that case, the Oireachtas was severely criticised for not putting in place the appropriate legislation. When legislation is not in place, the courts are called upon to interpret the Constitution.

In McGee v. Attorney General in 1974, prior to the change to the Constitution in 1983, Mr. Justice Walsh, when referring to the Constitution and the changes that can occur, said:

According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.

In the State (Healy) v. Donoghue, Mr. Justice O'Higgins said:

In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.

Many people have the idea that the Constitution is written in stone and there is a set interpretation from time immemorial in respect of each article and each subsection. These quotes clearly show that the courts have a different view. Therefore, those who are opposed to the introduction of legislation need to understand and study these judgments and the judgments of many other cases down through the years. Article 40.3.3° includes the words "guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." When that amendment to the Constitution was adopted in 1983 it imposed an obligation on the Oireachtas to put in place legislation and for more than 30 years that issue has not been faced up to. Twenty years have passed since the X case. In that case Mr. Justice McCarthy set out clearly his criticism of the Oireachtas when he said:

The guarantee to the unborn was qualified by the requirement of due regard to the right to life of the mother and made less than absolute by recognising that the right could only be vindicated as far as practicable. The guarantee was secured by the commitment of the State in its laws to respect and by its laws to defend and vindicate that right.

He went on to say:

I agree with the Chief Justice that the want of legislation pursuant to the amendment does not in any way inhibit the courts from exercising a function to vindicate and defend the right to life of the unborn. I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled.

In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan'scase the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable.

That was his judgment 20 years ago. He went on to say:

What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.