Q: 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.
A: 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 judgment, 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.
Q: 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?
A: 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 underpin the legislation if enacted. It would not be a case of the legislation, if enacted, altering the pre-existing meaning of the Constitution.
Q: 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?
A: The Government is not in a position to speak on 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.
Q: Please explain the meaning of the term "medical practitioner" as it is contained in the legislation.
A: 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.
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.
Q: 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?
A: 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: (a) reasonableness, (b) good faith on the part of the person holding the opinion, (c) that it had regard to the need to preserve unborn human life where practicable, (d) 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.
Q: What will be the position of a woman who is pregnant as a result of rape under this legislation?
A: 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 non-consensual 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 Garda?
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.
Q (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?
A: The Government is of the opinion that the courts have only been invited to consider the threat of suicide as 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 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.
Q: What would be the position under the legislation regarding the use of the "morning-after pill" at a point after "implantation" may have occurred?
A: 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).
Q: 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?
A. 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 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.
Q: What are the implications for IVF treatment and for embryo and stem cell research of this proposal?
A: 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.
