Bertie Ahern’s, Taoiseach, answers Michel Noonan, leader of Fine
Gael, questions regarding the 25th Amendment to the Constitution
Bill
Friday, October 19th, 2001
Letter from the Taoiseach to the Fine Gael leader concerning the
abortion issue
Mr. Michael Noonan TD
Leader of the Fine Gael Party
Leinster House
Dublin 2
Dear Deputy Noonan,
Many thanks for your letter of 4 October 2001, concerning the Twentyfifth Amendment to the Constitution Bill 2001.
I welcome your expressed wish to approach the matter of the
constitutional amendment in a manner designed, if possible, to produce
a consensus.
I am very glad that you have taken me up on my offer to endeavour to
answer any questions which you or your party may have in relation to
the Government proposal. I would add, of course, that insofar as you or
any of your advisors require any additional briefing, I would be happy to
arrange for that to happen.
Turning to the individual questions which you raise in your letter, I
propose to set out individual answers to each of the questions posed by
you.
You will appreciate that some of your questions are very far-reaching
and others are concise. Some of the questions raise issues on which it
is not possible to give a definitive response. Still others raise questions
which, I think, would be required to be answered by others.
Q1: The Constitution already guarantees the right to life to the unborn
under Article 40.3.3. The Government proposal appears to reinterpret or
redefine the definition of "unborn" contained in that provision. Please
explain in what manner the intended legislation and constitutional
amendment alters this definition.
A1: The Government proposal does not "reinterpret" or "redefine" the
term "unborn" as used in Article 40.3.3.
As you are aware, the original wording of Article 40.3.3 as adopted by
the people in 1983 uses the term "the right to life of the unborn". That
provision appears in the "Personal Rights" part of the Fundamental
Rights Chapter of the Constitution.
The term "unborn" or in the Irish text "na mbeo gan breith" is used
without any attempt at definition. The Irish text makes it clear that it is a
collective plural term. The Government Amendment would provide that
the "life of the unborn in the womb" should be protected in accordance
with the provisions of the Protection of Human Life in Pregnancy Act,
2002. The proposals have no relevance to the unborn outside the
womb. You will be aware that the Commission on Assisted
Reproduction is studying this issue and the Government awaits its
proposals.
The legislation, if enacted, protects the unborn by providing that "unborn
human life after implantation in the womb of a woman" should be
protected from the "intentional destruction" by a restated criminal
offence of abortion.
You will note that the proposed wording in the Constitution is to provide
a "particular" scheme of protection for "the life of the unborn in the
womb". The term " in particular" when used in the proposed Article
40.3.4 makes it clear that the statute envisaged by the Amendment, if
enacted, is not intended to be a restatement or redefinition of the term
"unborn" as used in Article 40.3.3.
You will recall, of course, that the obligation of the State in Article 40.3.3
to respect ("gan cur isteach") the right to life of the unborn (however the
unborn is to be defined) is unqualified but that the obligation of the State
to "defend and vindicate" that right by its laws is acknowledged to be
subject to legal and factual practicality.
Actions described as "emergency contraception" including the use of
the "morning-after pill" and the use of the post-coital IUD must, as a
matter of practicable law either lie within or without the criminal
prohibition on abortion. It is simply not possible to have a statutory
criminal offence carrying a serious penalty for its infringement where its
ordinary meaning for ordinary people in ordinary situations is left
obscure or unknowable.
Legal and factual practicality, in the Government's judgement, excludes
any attempt to go further than is proposed in the amendment. At any
given time, the exact state of an ovum in the womb of a woman is
largely unknowable. As a matter of criminal law, there can be no
presumption that a particular ovum is or is not fertilised at any given
point in time or that it has or has not implanted in the womb. Medical
research tends to suggest that around half of fertilised ova never
implant in the womb at all. In addition to that, there is reason to believe
that a significant proportion of fertilised ova which go on to implant in
the womb almost immediately come to nothing. These facts underline
the difficulty in providing protection by criminal law.
The Government's proposals will result, it is hoped, in the enactment of
a law which is clear as to its meaning and as to its effect.
You may be aware that the Society for the Protection of Unborn
Children in the United Kingdom has recently been granted leave to
commence judicial review proceedings in respect of the morning after
pill in the High Court of England and Wales seeking, inter alia, to
establish that use of the morning after pill is criminalised by the
Offences Against the Person Act, 1861, which is still the basic law on
abortion in the United Kingdom and in Ireland.
I think you will agree that it is wholly unacceptable that day to day
realities for ordinary people should be the subject of legal doubt as to
whether they are, on the one hand, legally innocent or, on the other
hand, amount to the commission of a very serious criminal offence.
Q2: What effect does the Government proposal have on the definition of
"unborn" insofar as it relates to human life before implantation in the
womb? This would appear to be a constitutionally guaranteed value at
present.
A2: I would refer to the answer at A1 above.
Q3: Is it intended that the reinterpretation of Article 40.3.3 be effected
and brought about by constitutional amendment and by legislation.
Please explain precisely how the Government proposal in legislation is
reconcilable with the present constitutional position which contains a
general right to life of the unborn. Can this legislation affect the present
constitutional provision?
A3: As previously stated it is not accepted that Article 40.3.3 is being
"reinterpreted". What is proposed is the insertion in the Constitution of
protection for the enactment by the Oireachtas of legislation in the same
terms as those set out in the Second Schedule should the Oireachtas
choose so to do. The legislation envisaged does not infringe the
"general right to life of the unborn". It provides that in a specific
circumstance, namely, after implantation of the fertilised ovum in the
womb of a woman, its intentional destruction amounts to an offence
(subject to the other provisions of the statute). Legislation cannot, of
itself, affect the Constitution. However, the terms of the proposed
amendment would make it constitutionally intra vires for the Oireachtas
to enact legislation in the terms set out in the Second Schedule should
they choose to do so. It would be the people's amendment of the
Constitution making the enactment of such legislation constitutionally
intra vires that would under-pin the legislation if enacted. It would not be
a case of the legislation, if enacted, altering the pre-existing meaning of
the Constitution.
Q4: It would appear that the Government's proposal does not accord
with the position set out on many occasions by the Roman Catholic
Church. In particular, I refer to the definition of human life as
commencing at the point of conception - not implantation, do you
agree?
A4: The Government is not in a position to speak on the behalf of any
Church. The amendment proposed by the Government, and the
legislation envisaged by that amendment, does not attempt to define
"human life" or to state when human life, as such, commences. The
envisaged legislation would make it a criminal offence to intentionally
destroy human life after implantation in the womb of a woman. The
offence has limited scope but that does not mean that unborn human
life as protected in the Constitution has been reduced as regards its
scope. If a serious criminal offence is committed by a person who
intentionally destroys unborn human life after implantation in the womb
of a woman, it does not follow that implantation is, as a matter of statute
or constitutional law, regarded as the commencement of human life or
that Article 40.3.3 will thereafter apply only to unborn human life while
under the specific protection of that Act. The Government's proposal
recognises that it is not practicable to attempt to protect by the criminal
law of abortion the fertilised ovum prior to implantation in the womb of a
woman.
Q5: As you are aware, the Supreme Court has identified a number of
unenumerated rights which arise under our Constitution. These include
the right to bodily integrity, the right to privacy and the right not to have
one's health endangered by the State. How will these constitutional
rights affect the Government's legislative proposal?
A5: The proposed amendment will, as stated above, make it
constitutionally lawful for the Oireachtas to choose to enact legislation in
the terms set out in the Second Schedule to the Amendment Bill.
Existing constitutional rights such as those mentioned in the question
will, of course, be taken into account by the courts in the interpretation
of the Constitution as amended, and in relation to the interpretation of
the legislation if the Oireachtas chooses to enact it.
It is not accepted that the legislation in any way trenches upon the right
to bodily integrity, the right to privacy, or the right not to have ones
health endangered by the State.
Q6: Has consideration been given to repeal of the present Article
40.3.3? If not, why not in the light of the definition involved in the current
Government proposal?
A6: As stated above, the Government proposal does not attempt to
redefine the term "unborn" when used in Article 40.3.3 or, for that
matter, to define or to redefine when human life commences for the
purposes of the Constitution. It is not proposed to repeal Article 40.3.3.
The third option in the All Party Committee on the Constitution Report
did not include such a repeal.
Q7: In the light of the previous questions, am I correct in assuming that
the matter of interpretation of the provisions of Article 40.3.3 as
amended will still be for interpretation by the Supreme Court of the day?
How is it anticipated that the Government proposals will impinge on the
rights of the unborn and the mother already identified in the
Constitution?
A7: As stated above, the provisions of Article 40.3.3 are not amended
by the text of Article 40.3.4. Article 40.3.4 simply makes it
constitutionally intra vires for the Oireachtas to provide in legislation for
the scheme of protection of the life of the unborn in the womb
envisaged by the terms of the Second Schedule. However, the
Supreme Court has laid down approaches to constitutional construction
which are well known. The doctrine of "harmonious interpretation"
requires that constitutional provisions should not be construed in
isolation from all the other parts of the Constitution among which they
are embedded, but should be so construed as to harmonise with other
parts of the Constitution. It is not anticipated that the Government's
proposals for amendment will impinge on the rights of the unborn and
the mother already identified in the Constitution.
Article 40.3.3 always envisaged that the legislature would make laws
which would, as far as practicable, defend and vindicate the rights of the
unborn but do so in a way which fully acknowledge the rights of the
mother. The legislation envisaged by the proposals for amendment of
the Constitution is in conformity with that expectation.
While it is true that threat of suicide will no longer constitute a real and
substantial risk to the life of the mother such as would render lawful an
abortion within the State, it is noteworthy that the only occasions upon
which it has ever been suggested that threat or risk of suicide was a
justification for having an abortion within the State were occasions upon
which individual women were being prevented against their wishes from
exercising the freedom to travel to another State. There is no significant
body of opinion that abortion is effective to avert risk of suicide in any
other context or case.
You will recall that the "hierarchy of rights" approach adopted by the
Supreme Court up to 1992 was expressly overturned by the two
amendments made to the Constitution in November 1992 insofar as that
approval affected freedom to travel and the freedom to obtain
information in accordance with law.
The envisaged legislation specifically provides in Section 4(1) and 4(2)
that it does not operate to restrict any person from travelling to another
state on the ground that his or her intended conduct there would, if it
occurred in the state, amount to an offence under that legislation.
The Government's proposals have been specifically drafted with a view
to ensuring that the non-recognition of the risk of suicide as a ground for
a lawful termination of the life of the unborn in Ireland does not result in
persons who would otherwise be free to travel abroad being refused
permission in any circumstance by any court exercising personal
jurisdiction over them from doing so.
Q8: Please explain the legal or ethical basis for the definition of the
word 'abortion' contained in Section 1 of the intended legislation.
A8: The envisaged legislation, the terms of which are set out in the
Second Schedule to the Amendment Bill, defines the term "abortion" for
the purpose of that legislation only.
Section 1 is a definition section for the purposes of the envisaged
legislation. Section 2 is the only other section in which the term
"abortion" is used. Section 2 replaces the existing criminal offence of
"procuring a miscarriage" which is provided for in Section 58 and
Section 59 of the Offences Against the Person Act, 1861.
Accordingly, the definition in Section 1(1) and (2) of the term "abortion"
is only for the purpose of establishing a meaning for it when used in
Section 2(1) of the envisaged legislation.
Since Section 2 is a criminal provision, it is essential that the actions
made criminal by it are clearly defined in workable legal terms. It would
be entirely wrong to create a serious legal offence (even in substitution
for an existing offence) without clearly explaining to the public what
behaviour did or did not amount to that offence.
So the "legal basis" for the definition is to provide a clear meaning to the
term 'abortion', and to exclude from that meaning the "carrying out of a
medical practitioner at an approved place in the course of which or as a
result of which human life is ended where that procedure is, in the
reasonable opinion of the practitioner, necessary to prevent a real and
substantial risk of loss of the woman's life other than by self
destruction."
The ethical basis for the definition must be viewed in this context. It is
not the Government's intention to resolve the ongoing ethical debate as
to whether procedures referred to in Section 1(2) of the envisaged
legislation amount to "legal abortion" or to "termination". It is not the
Government's intention to attempt to define what the term 'unborn'
means in the Constitution. It is not the Government's intention to define
the point at which a "distinct human person" comes into existence. All of
these issues are the subject of philosophical, moral, and theological
discourse.
In laying down an effective law for the protection of human life in
pregnancy, it is unnecessary (even if it were possible, which is very
doubtful) to resolve those philosophical, moral, ethical, or theological
disputes.
Q9: Please explain the meaning of the word "medical practitioner" as it
is contained in the legislation. Does it involve the entire range of
medical practitioners or a person engaged in a specialist consultancy?
A9: The term "medical practitioner" means a person permitted for the
time being by law to practise as a medical practitioner in the State. That
means any registered medical practitioner. All such medical
practitioners are, as a matter of law, subject in the performance of their
professional activities to the ethical and professional control of the
Medical Council.
The procedures referred to in Section 1(2) may or may not be carried
out by specialist practitioners such as gynaecologists or obstetricians. It
may be that in certain cases the procedures in question would be
carried out by persons who might have consulted with a colleague of
that description.
Bearing in mind that the envisaged legislation will require the holding of
a referendum if it is to be amended in any way, it was thought sensible
in the drafting process to use terms which were sufficiently flexible to
accommodate all existing practice and to accommodate realistic
scenarios which can occur under present circumstances without
creating obstacles to the proper medical treatment of women.
Any definition which, depended on some statutory distinction between
specialisms or expertise among medical practitioners would,
accordingly, be doubtful.
Since it is intended to restrict the procedures in question to "approved
places" within the meaning of Section 1(3) and subject to the additional
safeguards as are provided for in Section 5(2) including the requirement
of "confirmation" of opinions, and since there is no statutory basis for
distinguishing between registrars, consultants and other categories of
medical practitioner who customarily practise medicine at such
approved places, it was thought sensible to leave the term defined in
the simple, practical way in which it has been in the defined Second
Schedule. The possibility of a medical practitioner with no expertise or
experience in the area having access to a hospital designated as an
approved place for the purposes of the legislation and being in a
position to conform with the safeguards which will be provided for in
orders made under Section 5(2) is considered too remote to justify
restricting the category of "medical practitioners" to a narrower class
such as some non-statutory class of obstetricians or gynaecologists or
the like.
Q10: Please explain the meaning of "approved place" set out in subsections 2 and 3 of Section 1. Do I understand that this may mean any
hospital or clinic that would be recognised by the State?
A10: The term "approved place" is intended to be applied to hospitals
under responsible management possessing adequate expertise in the
area of obstetrics and gynaecology and in the treatment and prevention
of life-threatening diseases arising out of or complicated by pregnancy.
You will appreciate that it is very difficult to lay down comprehensive,
satisfactory criteria in detail in the form of permanent legislation which is
difficult to amend (and in this case requires a referendum in the
amendment process).
The terms of Section 5 of the envisaged legislation provide that any
order providing for "authorised places" will be laid before each House of
the Oireachtas and will stand to be invalidated within 21 sitting days.
There is express statutory provision not merely for the making and
keeping of records including records of opinions but also for their
"confirmation". These safeguards and the parliamentary scrutiny
provided for in Section 5(4), are considered to be sufficient to prevent
the abuse of "authorised places" or rogue behaviour by individual
medical practitioners.
Q11: Is it intended under Section 1 that the reasonable opinion of a
medical practitioner should be formed only by that practitioner?
A11: The reasonable opinion referred to in Section1(2) is defined in
Section 1(3) as "a reasonable opinion formed in good faith which has
regard to the need to preserve unborn human life where practicable and
of which a written record has been made and signed by the
practitioner."
The reasonable opinion must be "the reasonable opinion of the
practitioner". In other words, the practitioner must have formed that
opinion personally. It is not, however, essential that the practitioner
must form the opinion unaided or without guidance or assistance from
other medical practitioners. The person performing the procedure may,
of course, form such a reasonable opinion taking into account the
advice and opinions of others. The definition set out in Section 1(3)
requires that the opinion be objectively reasonable and also that it be
subjectively formed in good faith.
The opinion must be one which has regard to the need to preserve
unborn human life where practicable and, accordingly, the opinion
cannot be blind to that issue. However, that requirement does not go so
far as to oblige a medical practitioner to disregard a real and substantial
risk to the life of woman on the basis that preserving the unborn's life is
practicable in any given case.
The medical practitioner is, of course, always responsible for the
lawfulness of procedures carried out by him or her. They would be
responsible, in this case, both in terms of professional medical ethics
and in terms of the criminal law.
Q12: Section 2 of the legislation contains a prohibition on abortion. Is
the effect of this legislation that prosecutions may take place derived
from differing medical opinions in the context of Section 1?
A12: The intention of the Government is to provide a formula which
would fully protect in law the principles embodied in current medical
practice.
For an offence under Section 2(1) to be prosecuted, it would be
necessary for the prosecution to show that an abortion within the
meaning of Section 1(1) had taken place within the State. That would
entail proving that the acts alleged did not amount to the carrying out of
a medical procedure which complied with the requirements of Section
1(2).
If there were an issue in any criminal trial as to whether the opinion of
any medical practitioner in question was a "reasonable opinion" within
the meaning of the Act, the onus would be on the prosecution to prove
beyond reasonable doubt that one or more of the following necessary
attributes of a "reasonable opinion" was absent:
reasonableness,
good faith on the part of the person holding the opinion,
that it had regard to the need to preserve unborn human life where
practicable,
that a written record of the opinion had been made and signed by the
practitioner.
As to whether, in any individual case, a dispute between medical
practitioners of opinion would be an issue before a court deciding the
matter, it should be noted that the judges of fact in any case brought
under the envisaged legislation would be a jury and that they would be
entitled to have regard to expert testimony.
In order for a jury to convict in such a case, it would have to be satisfied
beyond reasonable doubt from all the evidence before it that Section
1(2) did not avail the defendant on the ground that a "reasonable
opinion" as defined by the Act, had not been formed by the defendant at
that time that he carried out the abortion.
Q13: Section 3 of the proposed legislation involves a conscientious optout clause. How is it intended that this would operate in practice? Would
it in any way alter the present position regarding medical practitioners,
nurses and other health professionals?
A13: The sole effect of Section 3 is that the Act, insofar as it excludes
from the definition of abortion a procedure referred to in Section 1(2),
does not in any way oblige a person to "carry out" that procedure where
the person in good faith has a conscientious objection to doing so. In
other words, the provision of the Act to the effect that certain
procedures shall not amount to abortions does not, per se, transform
them into procedures where any person be it a doctor, a nurse, or any
other health professional is obliged to partake in the procedure against
his or her own conscientious beliefs.
Q14: It may be contended that this intended legislation is the first step
to the introduction of abortion into this country. What would be the
Government's view of this contention?
A14: The Government would entirely reject this suggestion that this is
the first step to the introduction of abortion in Ireland. On the contrary, it
is the Government's view that the medical consensus in the medical
profession is the only thing which now stands between us and the de
facto introduction of "social abortion" in this country. The legislative
vacuum which now exists must be filled. If legal provision were made for
suicide risk, a system of psychiatric assessment and court supervision
would, almost inevitably, follow. If that were to happen, even if it were
initially done on a narrow basis, the scene would be set for a gradual
introduction of "social abortion" in Ireland.
Q15: What will the status of the Irish language version of this proposal
be in the context of Interpretation of the relevant constitutional
provisions? What steps have been taken in order to ensure the
legislation in Irish means precisely the same as the proposed English
version?
A15: As you are aware, in the case of conflict between the text of any
copy of the Constitution enrolled under Article 25, the text in the national
language will prevail.
The proposed text set out in the First Schedule has been carefully
translated so that it's English and Irish meanings are identical insofar as
that is possible. This work was carried out by the translation section of
the Houses of the Oireachtas during the month of September.
Likewise, the text of the envisaged legislation set out in the Second
Schedule has been prepared by the translation section of the Houses of
the Oireachtas during the month of September. The texts have been
carefully examined so as to ensure that they have the same meaning in
either language.
You will note that the Second Schedule is set out in both languages.
Accordingly, the envisaged legislation would have to passed by both
Houses of the Oireachtas in both languages. The terms of Article 25.4.6
of the Constitution provide that the text of the national language would
prevail should there be any conflict between the two versions.
Q16: What will be the position of a woman who is pregnant as a result
of rape under this legislation?
A16: I fully acknowledge that the issue of pregnancy caused by rape is
highly emotive and difficult. As drafted, the issue of whether the sexual
act that caused the pregnancy was consensual or non-consensual is
not material to any of the provisions of the Amendment of the envisaged
legislation.
If such a distinction were to be made, and if an allegation of nonconsensual sexual acts were to be the basis for legal abortion in
Ireland, the following very human issues would have to be addressed:
Any person below the legal age would be entitled to abortion A
threshold for determining whether consent was present would have to
be established by some process. Would a complaint suffice? Would it
have to be corroborated? Would it have to be assessed by some form
of committee or tribunal? Would it be a matter for the discretion of a
medical practitioner?
The matter could not be made contingent on the outcome of a criminal
prosecution for obvious reasons, including time and the fact that many
such cases are decided on issues such as identity of the assailant or
admissibility of evidence.
Would it be a precondition for allowing legal abortion in Ireland on the
grounds of absence of consent that a criminal prosecution was
instituted or, at least, that a complaint which could lead to such a
prosecution would be made to the Gardaí? Would it be fair to stipulate
such a precondition?
Would such a precondition prejudice the fair trial and investigation of
rape type offences? Would such a provision be counterproductive on
the basis that it gave to persons accused of rape an additional ground
for attacking the credibility and motivation of the complainant in such
cases?
The Government is of the opinion that it would not be appropriate to
provide for legalised abortion in Ireland on the grounds of an allegation
of rape.
Q17 (a) What will be the position of a woman in circumstances such as
arose in the X case under the Government's new proposals? In the
event of there being a genuine threat of suicide, will such a woman be
compelled to travel outside the jurisdiction such as arose in that case?
(b) What will be the position of a woman in circumstances such as
arose in the C case under the Government's new proposals? In the
event of there being a genuine threat of suicide, will it be legal for a
Health Board to assist such a woman to travel outside the jurisdiction
such as arose in that case?
A17: As mentioned earlier, the Government is of the opinion that the
courts have only been invited to consider the threat of suicide as a
grounds for an abortion in Ireland in circumstances where a woman was
being restrained against her will from travelling outside the jurisdiction.
In circumstances such as the X case, the amendment guarantees the
right to travel outside the jurisdiction. You will recall that it was the
Supreme Court's finding that travel outside the jurisdiction could be the
subject of an injunction where it was for the purpose of having an
abortion that led to its consideration of the suicide risk in that case.
In 1992, the voters reversed the basis of the Supreme Court's decision
by deciding that travel injunctions could not be granted on the basis of a
threat to the life of the unborn. There is no question of any woman being
"compelled" to travel outside the jurisdiction. The Government,
however, is of the view that legislation for the provision of abortion on
the ground of threat of suicide would start an inevitable and unstoppable
slide toward "social abortion" in Ireland.
As mentioned above, a person who could under existing case law travel
outside the jurisdiction will not have that right withdrawn by virtue of the
fact that the threat of suicide will no longer be a grounds for abortion in
Ireland. Section 4 of the envisaged legislation set out in the Second
Schedule to the Amendment makes it clear that the coming into effect of
the Act in no way reduces the right of any such woman to travel. There
is nothing in the proposed amendment or in the envisaged legislation
which would render it illegal for a health board to assist a woman to
travel outside the jurisdiction in such cases.
Q18: What will be the position of a woman who is pregnant as a result
of incest under this legislation?
A18: The envisaged legislation makes no distinction between
pregnancies which result from incest or from other circumstances.
Q19: The All-Party Oireachtas Committee on the Constitution heard
evidence from a number of eminent medical practitioners with differing
views on the question of a number of medical conditions in the context
of abortion. What steps have been taken to identify the effect of this
proposal in relation to the range of medical conditions identified as
problem issues during those hearings?
A19: The Government is satisfied that the procedures described in
section 1(2) of the envisaged legislation fully cover all the medical
conditions raised by medical practitioners of whatever opinion in the
context of their submissions to the All Party Oireachtas Committee on
the Constitution. The Government is not of the view that it would be
helpful to attempt to close this category or to specify the individual
conditions in the legislation. The formula set out in the section 1(2) is
sufficient to include all such conditions.
Q20: Is the proposal put forward reconcilable with Protocol No 17 to the
Maastricht Treaty?
A20: No plausible scenario involving any difficulty has been advanced
by anyone who has raised the issue of the interaction of the proposed
amendment with EU law.
The proposal is fully reconcilable with protocol 17 to the Maastricht
Treaty and no problem arises on foot of that protocol or on foot of the
solemn declaration made by the other member states of the European
Union in relation to that protocol. The amendment and the envisaged
legislation have no EU law content or implications and do not in any
way endanger or compromise the terms of protocol 17.
Q21: Will any amendment of the Constitution as intended contain the
benefit of immunity from EU law provided by the Protocol now or in the
future?
A21: The immunity now provided by the protocol will continue to exist
and is not affected in any way by the Amendment proposed. The
Amendment is solely concerned with the prevention of abortion within
Ireland and has no EU travel, EU information or EU service provision
implications whatsoever. There is no aspect of European Law and no
jurisdiction on the parts of any of the European institutions or of the
European Court of Justice which could challenge or prevent the
operation of the law envisaged by the proposed amendment.
Q22: Does the Protocol not refer to Article 40.3.3 specifically and not to
any other new amendment?
A22: The protocol itself does refer to Article 40.3.3. As you are aware, a
solemn declaration was subsequently made. But neither the protocol
nor the solemn declaration are of any relevance to the internal criminal
law of Ireland as a member state of the European Union in respect of
the criminal prohibition of abortion within the State and there is simply
no EU law dimension to the Government's proposal.
Q23: What is the status of the proposed amendment under EU law
generally, particularly in the context of abortion having being identified
as a service under the Treaty of Rome?
A23: The identification of abortion as a service under the Treaty of
Rome is irrelevant to the capacity of the Irish State to criminally prohibit
abortion in Ireland. Freedom of travel is not compromised by the
legislation in any event. Freedom of establishment for the provision of
unlawful abortion in Ireland simply does not arise under EU Law.
Freedom of information is already governed by other legislation.
Q24: What would be the position under the legislation regarding the use
of the "morning after pill" at a point after "implantation" may have
occurred?
A24: The morning after pill, as emergency contraception, is not effective
when implantation is complete. In this respect it is to be distinguished
from the use or administration of a chemical abortifacient designed for
the destruction of an embryo after implantation (such as Mifepristone,
formerly known as RU 486).
Q25: What would the arrangements to provide for debate and
amendment of the Government proposals during its introduction? Do I
understand that the present proposal will not permit any amendment
during its passage through the Oireachtas? In view of the very serious
issues which arise, surely there is a profound need for careful debate
and clarification. Does this not apply particularly in view of the
constitutional protection which it is intended this legislation will have
under Articles 26 and 27 of the Constitution?
A25: I attach for your information a memorandum on the subject which
was furnished to you in my letter of the 5 October 2001.
Q26: Please provide details of the legal advice which the Government
received prior to the introduction of this proposal.
A26: The Government and the Cabinet sub-committee of this issue
received written memoranda and verbal advice setting out, inter alia,
legal advice from the Attorney General as the occasion demanded. It is
not proposed to publish all of the drafting documentation which was
considered by the sub-committee or by the Government or to publish
any oral or written advice tendered by the Attorney General. In this
connection, I would stress that I have already furnished you with the
Attorney General's advice in relation to the suggested difficulties under
Article 46.4 of the Constitution of the process of amendment envisaged
in the Amendment Bill, and the advice on parliamentary consideration of
the Amendment.
Q27: It would be helpful to obtain details of the consultation process
which took place prior this announcement.
Q28: With whom did such consultation take place?
A27 & A28: The consultation process leading to the announcement of
the Government's proposals took place over four years. During that
process, every significant section of public opinion has been invited to
participate and consulted. In particular, medical practitioners, women's
groups, political parties, organised campaigners, trade unions, family
planning and pregnancy advisory bodies, lawyers, church
representatives, and interested individuals, had a substantial input.
In 1997 an interdepartmental group was established at official level to
examine the issue; it was working to a cabinet sub-committee which
gave rise to the publication of the Government's Green Paper. The
consultation process which underlies the publication of the Green
Papers is fully set out in that Green Paper. The Green Paper was
subsequently referred to the All Party Oireachtas Committee on the
Constitution. The consultation process in relation to that phase of the
development of these proposals is fully set out in their Report.
While the present proposals were being considered by the cabinet subcommittee, individuals who had made submissions to the All Party
Oireachtas Committee on the Constitution were asked to clarify certain
aspects of their testimony or submissions as the case may be. No
consultation took place with any church hierarchies or governing bodies.
No consultation took place with the Medical Council. The clarification
process mentioned above took place informally and in confidence.
Q29: In the light of the issues which arise, is there not a case for the
matter being dealt with simply by legislation particularly having regard to
the necessity for a full, constructive and rigorous debate on these
complex issues?
A29: There is no reason why a full, constructive and rigorous debate
should not take place in the context of the consideration of the
Governments proposals during the legislative process in the Dáil and in
the Seanad.
The difficulty of dealing with the matter simply by legislation is that the
legislation would have to proceed on the basis that provision had to be
made for the threat of suicide to which you referred to in earlier
questions as a basis for legal abortion in Ireland. The Government does
not propose to take the X decision as its point of departure for
legislation in this area. In order to ensure that the provisions of the
envisaged protection of Protection of Human Life in Pregnancy Act are
safe from challenge from either side of the argument on the correctness
of the X case decision, the Government believes that the envisaged
legislation should have constitutional protection and that it should be
capable of amendment by ordinary legislation subject to the
requirement that the people be consulted by the referendum process
before later amendments can be made.
Q30: What arrangements is it envisaged will take place regarding the
running of an amendment to the Constitution having regard to the
McKenna decision? Will all groups, pro and anti, be given media
access? How will the Government information campaign be run? How
will the "pro" and "anti" groupings be identified for the purposes of
legislative and constitutional compliance?
A30: As you are aware, the All Party Committee on the Constitution is
currently near to publishing a report on the referendum process. The
Government will consider the question that you raise in the context of
the All Party Committee Report.
In the meantime, however, arising out of the Coughlan decision,
broadcast media access will be on the basis of fairness and equality.
The Government will fully comply with the requirements of
Constitutional jurisprudence in relation the conduct of the Referendum.
The question of whether or not to establish a referendum commission
for the purposes of the referendum will be considered later.
Q31:What are the implications for IVF treatment and for embryo and
stem cell research of this proposal?
A31: As you are aware, there is in being a Commission on Assisted
Reproduction whose report, it is expected, will not be available before
next year. The question of legislative control in respect of IVF treatment
and of embryo and stem cell research will be separately addressed by
that Commission. The Government's present proposals are concerned
only with the protection of human life in situations of pregnancy. The
passage of the Government's proposed Amendment will not in any way
compromise or predetermine the report of the Commission or the
adoption of legislation to provide for regulation in those areas in the
aftermath of the Commission's report.
Q32: Section 1(3) defines "woman" as a female person. As the gender
of the unborn can be known from an early stage of pregnancy, does this
mean that an unborn female is considered a "woman" under this Act?
How will this status compare with the status of the "woman" who is the
mother and how will their constitutional right to life be balanced? Will an
unborn male have less constitutional protection?
A32: This question is based a misunderstanding of the content of
section 1 of the envisaged legislation. The term woman is defined as a
female person by section 1(3) to ensure that the term includes both
young persons and adults.
The definition of an abortion in Section 1(1) provides that it means "the
intentional destruction by any means of the unborn human life after
implantation in the womb of a woman". Phrase "womb of a woman"
could not apply to an unborn human being of the female gender.
The phrase "loss of the woman's life" when used in section 1(2) has
been carefully drafted to refer back to the phrase "womb of a woman" in
section 1(1).
Accordingly, there is no question of the gender of the unborn being in
any way relevant to the operation of sections 1 or 2 and there is no
question of any discrimination between unborn males and females.
Q33: Section 2(2) "A person shall be presumed to have intended a
natural and possible consequence of his or her conduct, but this
presumption may be rebutted". What test is to be used in rebutting a
presumption that a person has intended a natural and possible
consequence of his or her conduct?
A33: Section 2(2) merely replicates the ordinary provisions relating to
criminal intent as set out in the Criminal Justice Act 1964 in respect of
homicide. There is extensive case law on the section as used in the
1964 Act. To give a concrete example of how it would work in the
context of abortion, a person who administered RU 486 to a pregnant
woman would be presumed to have intended to bring about any
abortion which it caused. He or she could, however, rebut that
presumption by establishing in the jury's mind a reasonable doubt that
in administering RU486 he or she did not intend to bring about an
abortion despite the fact that such an effect was its natural and probable
consequence.
Q34: Section 5. As no amendments may be made to the Act without
reference to the people, why may a designated member of the
Government vary orders on the Act without any reference to the
people?
A34: The Orders covered by Section 5 are those envisaged by the
definition of an approved place within the meaning Section 1(3). Quite
clearly an order made under section 5 would be subject to annulment by
either House of the Oireachtas.
It is not considered reasonable that the people should be consulted on
whether one hospital or another should be an approved place for the
purposes of Section 1(2). It is not considered reasonable that the
people should be consulted on the detail of records in relation to the
making keeping and confirmation of medical records including records
of opinions.
It should be born in mind, however, that the making of an order under
section 5 which would have the effect of nullifying or rendering
inoperable the entire Act would be ultra vires a member of the
Government and liable to be challenged in the Courts. If, say, a minister
were to revoke all previous authorisations and substitute no other
authorisation and thereby attempt to make Section 1(2) inoperable, his
revocation order would, to that extent, be unlawful and liable to be
quashed in law.
Furthermore, Section 7(2) provides a two month period after the
passing of the envisaged legislation by the two houses of the
Oireachtas in which all the relevant orders will be made in anticipation
of the coming into effect of the Act. That procedure is envisaged by the
terms of the Interpretation Acts. When the Taoiseach commences the
Act under Section 7(2), Section 1(2) will be fully operational and all the
relevant orders will have been made.
Variations in those orders will be subject to parliamentary scrutiny as
envisaged by Section 5(4) and wholesale revocation for the purpose of
making the Act inoperative will be unlawful for the reasons mentioned
about.
May I reiterate my thanks to you for raising the issues spelt out in this
letter and may I express that hope that my replies may assist you and
your colleagues in the Fine Gael Party to adopt a broadly supportive
approach to the Governments proposals.
Yours sincerely,
Bertie Ahern, T.D
Taoiseach