Michael McDowell (Independent) | Oireachtas source

I believe that the people, by adopting the freedom of information and the freedom to travel amendments to reverse in part the courts' decisions in respect of the original article 40.3.3°, were qualifying the idea of equality at the time. Viewed barely, that is what I believe was happening.

Even when all of that was done, there was a succession of cases, some of which I was involved in as Attorney General, others as a barrister, but I do not want to deal with them because I do not refer to cases I was involved in. In some cases Article 40.3.3°, notwithstanding the changes that have been made, affected for instance the position of a child in care, and whether the Irish courts or health boards would facilitate such a rape victim in care in going to Britain. There was serious opposition at the time and some of it came from the pro-life movement, which was entitled to express its views.

There have been trips to Strasbourg in respect of fatal foetal abnormalities and we are now addressing the issue fair and square. Senators Wilson and Mullen ask what is so special about 12 weeks. In one sense, whether it is 11 or 13, they are somewhat arbitrary time periods. The medical truth, however, is that after three or four weeks it is a cluster of cells that is a couple of millimetres across. It begins to pulsate, to circulate fluids to maintain its existence and development. We are told that is a heartbeat but there is not really a heart at the earliest stage. Up to eight or nine weeks we are dealing with a developing embryo, which grows from being tiny to being less than the size of a finger over several weeks. That is the period we are dealing with, not a foetus such that any ordinary person looking at it, if it was miscarried, would say there is a person. What a person would say in such sad circumstances is there was the seed, the potential, for a person to exist. Many mothers have been in that sad position after miscarriages. In my respectful view, the law should not be, and the Constitution should not have been, perverted to regard that foetus at that stage of development as a human person in the sense that we accord meaning to the term "person".I want to make the point about what this section is doing. We are removing from the Constitution a very contradictory set of statements which started in 1983 with what I believe was an untrue statement that the unborn was a person with the same and equal rights as the mother which when it came up against legal realities in the X case had to be reversed by the people through a constitutional amendment to reverse the idea of equality and to say that we will treat the unborn differently from a born child. That is what we did because, as I said earlier, nobody in his or her right mind would change the Constitution to say that parents can bring their born baby to England to have that baby killed. Nobody would do it so the people actually were making their own judgment on these matters. We have now got to the point where we see all the problems that still flow from the fundamental untruth that a zygote or foetus at an early stage of its development is to be regarded as an equal person compared with a child just about to be born. We have got to that point where we must confront the problem which arises from that. They are serious problems legally. In all seriousness, what was wrong with Article 40.3.3°, and the late Peter Sutherland pointed out what was wrong with it, was that it would inevitably have these consequences because it was not telling the truth and it was not admitting that we were dealing with a grey area. It was saying it is black and white, it is simple, just vote for it, everything will be all right and there will never be abortion in Ireland. It failed. It is an obstruction. I am not going to say the recent legislation is, to use the phrase, "a dog's dinner", but it is not satisfactory and everybody knows it is not satisfactory and is not a maintainable or sustainable point of view. Let us again remember the people who are against repeal of the eighth amendment vigorously opposed the legislation that was supposed to regularise the post-X case decision. They were entitled to do so. I do not criticise them for that but it is not as if the status quois what they wanted to defend. They want to defend a very different simplistic Article 40.3.3° as they originally intended it to be. I want to make the point that we are not simply putting in the wording to which we will return when we get to the Schedule. We are removing Article 40.3.3° and we are bringing Ireland back to the position in 1982. It was not a bad position in one sense because the Legislature at that time had the freedom to deal with abortion, termination, rape and all the rest of it as it saw fit. What was done in 1982 at the behest of people who were worried about a Roe v.Wade decision from the courts was to take away the power from the Legislature to bring in laws to deal with that situation. I think that is a very serious problem.

Senator Mullen said last night that we have an infanticide law that differentiates between a mother in post-delivery and the rest of humanity when it comes to the law of homicide and takes account of post-natal depression. It used to be on the basis of a crazy theory that it had something to do with the effect of lactation on the mother's mind. What Senator Mullen said is true but it is still a crime. What Senator Mullen advanced yesterday for our consideration was the possibility that with a humane and decent DPP, no girl would ever be prosecuted for taking the abortion pill. I am saying that if we keep Article 40.3.3°, which is a point I did not have time to make yesterday, we cannot decriminalise abortion. The courts would say that this is unconstitutional. We cannot say "Ah, we'll turn a blind eye to this and turn a blind eye to that." We cannot turn a blind eye. If somebody gives somebody else an abortion pill, we cannot turn a blind eye to that set of facts and at the same time, claim that we are upholding the right of the unborn as far as is practicable and defending and vindicating that right. We know that a girl was prosecuted in Belfast for taking the abortion pill because her flatmate got a pang of conscience and told the police about it and the poor girl was interviewed about it and admitted it. She was prosecuted for that. Let us not cod ourselves. I say in all sincerity and with all conviction that what leaving Article 40.3.3° in place actually involves is requiring it to be a crime to take an abortion pill and to assist somebody in taking an abortion pill like going to England to get it or going down to the chemist to get it. We cannot decriminalise that activity and keep Article 40.3.3° in its present form. I reject the idea that the Constitution is there to set standards and is not there to deal with the hard cases because in the end, we remember the poor girl in the X case - a rape victim who was hauled back from England by the courts because that was the law - and we remember that girl in Belfast who found herself dragged before the courts because she had taken the abortion pill in Belfast where it is a criminal offence to do so. If we are going to say there is no distinction between a cluster of cells in a Petri dish in a laboratory and a human being and say there are no shades of grey, there is no developmental process and no spectrum of development within which the victim of a rape is entitled to take steps to end a pregnancy and it will be and must remain a crime for the victim of a rape in Ireland to end her pregnancy, which is what not deleting Article 40.3.3° necessarily means, so be it. We should stand on that but the consequences definitely are that this is what we are standing for. If this referendum is defeated, it will be a crime for a victim of rape in Ireland to take an abortion pill to end the pregnancy, it will be a crime for anybody to give it to her and it will be a crime for anybody to assist her in getting it. They will all be criminals before our law. If someone says to me, it will not happen, I will say that it has happened in Belfast. Tell me why it should not happen here if that is not merely part of our criminal law but part of our criminal law that is necessitated by the terms of the Constitution itself.

I ask fellow Members of this House to consider carefully what keeping Article 40.3.3° actually means. We are in exactly the same position as our predecessors were in 1983 when they enacted the eighth amendment. We are making a decision which will have definite legal and criminal effects. There will be outcomes. A person cannot simply say he or she is against 12 weeks, therefore, he or she wants it to continue to be a criminal offence for a girl to take the abortion pill in Ireland after a rape, that is what he or she wants it to be and that the price he or she is willing to pay to keep the Constitution as it is because that price will be paid by some girl. It was in Belfast and it will be here. The same applies to any way a person can try to develop the law in any way to deal with exceptions such as rape.Regardless of whatever faults people have with the processes of the joint committee of these Houses and the Citizens' Assembly, they faced up fair and square. We will never be able to have a process that will determine whether a girl was raped in time for that girl to take any steps to defend herself. We only have to look at the news which came out from the criminal courts in Belfast today to ponder how difficult it is for a rape to be established. We only have to look at recent decisions of the Irish courts that somebody who has sex while not using a condom commits rape with a woman who is willing to consent to it on the basis that a condom would be used to realise how impossible it would be to have a system other than a 12-week, no questions asked system to deal with those kinds of hard cases.