Averil Power (Fianna Fail) | Oireachtas source

The Minister indicated that this had not been established from a constitutional perspective and there has not been a Supreme Court case. We put legislation through this House every day that enjoys the presumption of constitutionality. We work on the basis of advice from the Attorney General or other counsel, and we assume that the interpretation we work with is consistent with the Constitution. This often happens for areas in which there have not been settled Supreme Court decisions, and we never know the constitutionality of a piece of legislation unless it is challenged. In this House we must believe the work is constitutional unless there is a successful challenge.

As I mentioned, the State previously argued successfully before the European Court of Human Rights that provision for termination in cases of fatal foetal abnormality is constitutional. In her contribution, Senator Bacik stated that her legal opinion, as an eminent lawyer, is that the provision is constitutional. I accept that we cannot know for sure if that is true unless a case is taken against the provision. Equally, it is wrong to expect a woman to bring that case; we would not be doing our jobs by delegating that responsibility to some poor woman who has had to go through this horrific experience. Essentially, we would be telling her that not only do we want her to go through the experience but we want her to live it again when she goes to the court to assert her rights. That is not just my personal opinion, as it is shared by eminent lawyers throughout the State.

It has been argued that if we include this provision the Bill might be open to constitutional challenge, but anybody who believes this legislation will not be challenged in the courts is being incredibly naïve. As we are speaking on the Bill, people are preparing legal challenges to it. The most sensible course of action may be for the President to refer the Bill so the Supreme Court can consider it straight away and it can enjoy full constitutional protection. Challenges were made straight after the children's referendum and this Bill was challenged in court while it was still in the Dáil, when somebody brought a completely ridiculous case that never had any chance of getting anywhere. This Bill will be challenged and I do not accept that fear of challenge is a good enough reason not to include a provision that the State has previously argued as constitutional.

Members have referred to the One Day More and the Termination for Medical Reasons groups. As I noted in my opening contribution, I am in favour of choice, and it is unfortunate that a value judgment has been made about the choices made by women with different outcomes of pregnancy when they were told their babies could not live. It is not fair. No matter what decision a woman makes, it is right for her and her family. I completely understand how a family might decide that having a precious five minutes or hours is right for them, but equally, I understand how a woman who knows her baby is in pain would feel the humane action is to relieve that pain. It is wrong for us to make any kind of value judgment against women in those positions, and I argue that they should have a choice. The right choice in any case is only for the mother, her partner and her family, and it is not my place to make it.

Comments were made about the rape issue.

I said yesterday that as an adopted person, any abortion is a tragedy. Equally, I can fully accept that there are some women who just do not feel that they can go through with a pregnancy that has been conceived as a result of rape. Equally, I do not think it is right to judge them. I said yesterday that if a girl came to me for support who was in similar circumstances to the 14 year old rape victim who was at the centre of the X case, I would try to do everything I could to help her. I would bring her for counselling, I would talk it through with her and I would speak to her as an adopted person about the gift of bringing a child into the world and giving it to another family. Equally, I would understand if she could not do that. I do not think it is right to make a choice for somebody in those circumstances. I do not think it is right to expect them to relive their pain through a pregnancy. It just confounds the abuse that has already been inflicted upon them.

To respond to the comments on rape, it is not a black and white issue or an easy situation, but women who find themselves in those circumstances should have a choice. Ultimately, when we have a referendum on that issue - I accept it cannot be covered in this Bill - I think that most Irish people would feel the same.