Rónán Mullen (Independent) | Oireachtas source

I welcome the Minister to the House. I cannot imagine a more important debate taking place in this House. We are discussing one of the most difficult human questions that arises in the Western world today. I am mindful that we are speaking in the wake of a recent children's rights referendum, which happily was passed and resulted in the insertion of the words, "The State shall acknowledge the natural and imprescriptible rights of all children" into our Constitution.

In reflecting on profound questions, we should remember that our laws should always be infused with values of gentleness, love, inclusivity and humanity. The word "humane" featured in the Minister's speech. What is most humane about Ireland's abortion laws, for all our faults as a country - and like other countries, we have faults - is that we have preserved, cherished and thrived within a two-patient model, namely, the care and protection of women in pregnancy and their unborn children. There is something merciful, just and noble about that.

Members of our Government may be teetering on the brink of making a tragic mistake. I hope it can be persuaded not to do so. It is unjust to link this important debate with the tragic events that took place in Galway when the details of what happened in that situation are not known. It has been reported in The Irish Times that it never suggested that a termination of the pregnancy would have saved that unfortunate woman's life. I am sorrowful at the co-option of that tragedy in recent weeks to advance a different political point.

I welcome the opportunity to discuss the expert group's report. However, I cannot compliment it on the consistent clarity and lucidity with which the Minister credits it. I will give an example. The report presents guidelines as one of its options but suggests that guidelines alone would not be acceptable to the Committee of Ministers of the Council of Europe. The report simply asserts this and does not provide any justification for it, other than that the guidelines are not legally binding. The reality is different. It is well accepted that the Committee of Ministers has in the past accepted administrative measures such as guidelines as discharging a member state's obligations in the wake of a European Court of Human Rights decision. The court stated in the A, B and C v. Ireland case that it does not decide on the means by which judgments are implemented. It is only concerned that accessible and effective procedures be offered so that an applicant such as C would know what treatment was lawfully available to her.

By such procedures somebody in applicant C's position could know what treatment was lawfully available to her. The court specifically referred to medical guidelines in its judgment and did not state that such guidelines would fail to address the rights' violation found in the case. In this regard it should be noted that when the court mentions legislative or regulatory mechanisms, it does so as a catch-all phrase intended to include all measures that would satisfy a member states's obligations under the convention.

Guidelines would bring the necessary clarity required in my view and could also provide whatever appeal mechanisms were deemed necessary according to the judgment in the A, B and C case v.Ireland. The European Court noted that it was not calling for the current legal test to be altered. Instead it recognised that what was at issue was to provide accessible and effective procedures for the making of the medical test. Since it is agreed by all that the test in question is inherently medical in nature, it would seem that the best way to clarify it and its attendant appeal mechanisms would be by medical guidelines.

With regard to a referendum, the report fails to include as one of its options a referendum overturning the X case judgment, but there was nothing in the expert group's remit that would have precluded it from examining the possibility of a referendum. The terms of reference clearly state the taking into account of constitutional, legal, medical and ethical consideration. We have the reference to the fact that the only brief the Minister gave this group was to deal with the requirements of the European Court of Human Rights and to advise the Government how to give effect to existing constitutional provisions. Perhaps the Minister can explain how that came about or why and when that brief was given as it seems to put a new meaning on the terms of reference, which do not of themselves admit a construction that the possibility of constitutional change could have been considered. Notably the European Court of Human Rights has consistently affirmed that there is no such thing as a right to abortion. In the A, B and C v. Ireland case it is stated again that Ireland is free to decide on its own abortion laws. Therefore a referendum was and is a very real option and should have been included in the report. Some activists and activist Ministers have suggested that two similar referenda have failed in the past and therefore there is a clear indication that people do not want to overturn the X case judgment. That is simply false. The referenda of 1992 and 2002 were defeated by a coalition of pro-life, pro-choice groups and voters for a variety of conflicting reasons. This is a well established fact of Irish political science because there was an exit poll from the 2002 referendum which showed that a majority of people voted for pro-life intentions. A referendum therefore that focuses solely on overturning the X case judgment would in my view and could garner the support of a majority of people. I think that is still borne out by the most recent poll in the Sunday Business Post which put it that 63% would favour a limiting of the X case scope to exclude the threat of suicide, which as we know is controversial and unmedical.

Another glaring flaw in the report is that it suggested that any measure short of amending the Offences against the Person Act 1861 would leave this Act on the Statute Book and constitute a chilling effect on doctors performing genuinely legal interventions in pregnancy. This has been seized on already in this debate. Such an assertion can be made by ignoring not only the central role ofmens rea in our criminal law but also that statute law is operative only to the extent that it is in conformity with our Constitution. The facts are plain, no doctor has been prosecuted let alone convicted for an unlawful abortion since the 1983 referendum. There is simply no chilling effect. In fairness to the judgment in the A, B and C casev. Ireland, it mentions the concept of a chilling effect only in the context of the absence of legal clarity, which it is proposed to provide. That frankly is a sad red herring.

There is uniformity among all citizens of goodwill that we must always guarantee best medical treatments for women in pregnancy and for physical conditions including where it is foreseeable that the child will be lost. There is an established tradition in medicine in other situations outside of pregnancy of giving treatment that one knows may carry a potential harm to a patient but because it is the not direct intention it is none the less ethical and lawful. The difficulty is that there is nothing humane about the decision that a threat of suicide could constitute the threat to life. It is a medical myth. We do not have a constitutional principle requiring a Supreme Court judgment to be legislated for. We do not have any reason or principle to give legal effect to what is a medical mythology. One of the advantages of both guidelines and referendum approaches is that they avoid legislating for the X case. Why have seven successive Governments decided against legislating for the X case in spite of a resolutely pro-abortion media? The answer is simple, the X case was a flawed judgment, based on non-existent medical evidence. No psychiatrist was heard. We saw in the C case which Senator Bacik mentioned - the person told her own story