Private Members Business
Tuesday 16th December 2014
Speech by Leo Varadkar T.D.,
Minister for Health
Thirty-fourth Amendment of the Constitution (Right to Personal Autonomy and Bodily Integrity)
The private members bill before the House tonight proposes to do two things. First, to delete the eighth amendment to the constitution and in so doing remove the constitutional right to life afforded both to the mother and the unborn child. Second, it proposes to insert a new provision acknowledging the citizen’s right to personal autonomy and bodily integrity.
It also affords us another opportunity to debate our abortion laws which I welcome. First of all, I am hopeful that we shall have a rational and measured debate tonight and tomorrow.
For too long, the debate on abortion has been dominated by the extremes on both sides who have in turn crowded out the middle ground. Instead of a genuine debate there has been name-calling, and a corrosiveness that has damaged how we approach this most difficult of issues. I do not believe that one side is anti-life just because they call themselves pro-choice, any more than I believe that one side is rigidly anti-choice just because they call themselves pro-life.
Medicine and the human condition are coloured in grey and cannot be reduced to binary argument – black and white. We need to approach this issue with compassion rather than with cold certainty.
So let us approach tonight’s debate in a new spirit. Let us prove to those who have become disillusioned with the extremes of both sides – even with politics – but who know in their hearts what is right and what is just – that we can have a calm and measured debate, an exchange of views about what is right and wrong for women, the unborn, families and society.
Ceann Comhairle, often individual cases give rise to ethical and legal dilemmas that are very hard to resolve. I shall not mention any tonight but everyone in the House will be familiar with these cases or at least some of them.
Advocates on both sides in the debate often use such cases to advance their argument insisting that such should happen ‘never again’. That is a nonsense. No law can ever eliminate all human tragedy from human pregnancy. Countries with very conservative laws such as ours risk putting the lives of women at risk by refusing terminations.
Countries with very liberal laws do the same, allowing for the life of the unborn to be ended and exposing women to potential injury, loss of fertility and even death as a consequence of abortion. It is rare. But it does happen.
Dilemmas about late term abortion when the unborn child or foetus is a 20, 22, 24, 26 weeks gestation occur in other jurisdictions. As do dilemmas about the viability of an unborn child, fatal foetal abnormalities and even disabilities that are compatible with life. It is not just an Irish problem. Every country and parliament grapples with these issues. We are not unique and there are no easy answers, nor a social consensus to which we can yet all agree.
We can never say ‘never again’ and think to mean it. We need to face up to that and be honest about it.
There is no perfect abortion law and never will be. We will always be challenged to amend and refine whatever law we have and so we should.
The proposal made in this bill asks us to acknowledge the right of all citizens to bodily integrity and personal autonomy. I think this proposal flawed.
It is not clear what the author intends by providing that the State will ‘acknowledge’ the rights of all citizens to autonomy and bodily integrity. The proposal is vague. It makes little sense to state that the State simply ‘acknowledges’ that rights exist. Usually once rights are acknowledged, the State then indicates how it intends to protect them.
For example, Article 40.3.3 as it currently reads provides that the State “acknowledges” the right to life of the unborn but it continues by stating that with due regard to the equal right to life of the mother, the State guarantees in its laws to respect, and as far as practicable, by its laws to defend and vindicate that right. In other words, the State in Article 40.3.3 is doing more than acknowledging rights, it is also protecting them.
In the same vein, Article 42 the State “acknowledges” that the primary and natural educator of the child is the family, but it goes on to guarantee to respect the inalienable right and duty of parents to provide for the education of their children.
Again, in Article 43, the State “acknowledges” that man has a natural right to ownership of private property but again, Article 43 goes on to provide that the State “accordingly guarantees to pass no law attempting to abolish the right of private ownership….”.
In other words, there is little point in acknowledging a right without adding the specifics as to what the State is going to do to protect that right.
The language employed in Deputy’s proposal is opaque and unsure as to what it actually wants the State to do. These points are all the more important in the context of a Constitution, a document laying down the fundamental legal structure of the State.
Article 40.3.1 provides that the State guarantees in its laws to respect and, as far as practicable, to defend and vindicate the personal rights of citizens. Specific rights are referred to in Article 40.3.2; these are the right to life, person, good name and property rights.
The judiciary has identified a number of additional personal rights arising from Article 40.3.1. One of these is the right to bodily integrity.
Another is the right to privacy, which has been recognised as an unenumerated personal right under Article 40.3.1. Autonomy is related to privacy and the constitutional values of autonomy and self-determination have also been accepted by the courts as recognised by the Constitution. Thus autonomy and bodily integrity are personal rights already protected under the Constitution.
There for the proposed amendment contains rights that are already protected under our Constitution.
If there is one thing that we have learnt from the mistakes of the past, it is that ambiguity in wording can be the source of terrible problems further down the line.
While I have no doubt about the Deputy’s sincerity in putting forward this amendment for inclusion in our constitution, I do not believe that she has given full thought or due regard to the law of unintended consequences, and I cannot support the inclusion on this wording in our constitution. So, to avoid repeating the mistakes of the past, this Government will not be supporting this bill.
Indeed, it seems to me that the Deputies in favour of this, in not considering the effects and outcomes that could flow from their proposal, are perhaps making a similar misjudgement to those who sought the inclusion of the 8th amendment in our constitution back in 1983. I doubt any of them thought that the effect of their actions would be, in fact, the creation of a constitutional right to a termination in certain circumstances. But that, is exactly what happened and indeed the Oireachtas legislated to codify and clarify that constitutional right only last year in the Protection of Life in Pregnancy Act.
Looking back to the early 1980s we had what Gene Kerrigan has called a ‘Moral Civil War’, as two opposing sides fought over principles they genuinely believed in. But there were no winners in this cultural civil war, only losers. The result was a flawed amendment.
Just as damaging, as one of most perceptive commentators, Ann Marie Hourihane, has noted, reflecting on the events of 1983 exactly twenty years later, ‘one of the biggest results of the amendment was that parliamentary politics lost its thrust…’ The momentum came from outside of parliament, and she noted that: ‘The Dáil never got to grips with this’
Such criticism is deeply wounding, and I would like to think that it is no longer correct. On both sides of this House politicians care deeply about these issue, and want to see them resolved, even if we may disagree about best how to go about it.
I think in considering the eighth amendment, we should recall the words of some of the wise voices of the time. The attorney general of the day, Peter Sutherland, was clear in his objections to the proposed wording, but unfortunately the Dáil voted against an alternative proposal.
In his 33 page memo to government he predicted all the problems that came to pass, and warned that ‘far from providing the protection and certainty which is sought by many of those who have advocated its adoption it will have a contrary effect’. He recognised that the eighth amendment would ‘confuse doctors as to their responsibilities, and inhibit them from making decisions rather than assist them’.
Speaking in the Seanad on the 26th of May 1983, Mary Robinson attacked the amendment as something ‘so uncertain in its scope and so potentially contradictory in its meaning’ that it would be ‘so potentially damaging to existing practices in the area of family planning and medical treatment’.
How prophetic those words were and have turned out to be.
Last September, in this House, I was asked for my views on the eight amendment. I declined to give them at the time. Ministers for Health do not just represent their own private views, they are guardians of the nation’s healthcare, and must work to protect and safeguard all of its citizens. But perhaps people may be interested in where I am coming from.
I consider myself to be pro-life in that I accept that the unborn child is a human life with rights. I cannot, therefore, accept the view that it is a simple matter of choice. There are two lives involved in any pregnancy. For that reason, like most people in the country, I do not support abortion on request or on demand.
But I also know that this is an issue where there are few certainties, there can be a conflict of rights and difficult decisions have to be made every day, sometimes to save a life, sometimes because the quality of the lives involved also need to be considered.
I like to believe that I am a conviction politician, often definite, sometimes blunt but this is an issue that requires compassion and empathy, and not unshakeable certainty. That was the mistake we made as a Dáil and a society in the 1980s, when we engaged in a simplification of politics to present this a straight choice between right or wrong, when human decisions are rarely so simple.
Speaking today as Minister for Health, and also as a medical doctor, and knowing now all that I do now, it is my considered view that the eighth amendment is too restrictive.
While it protects the right to life of the mother, it has no regard for her long-term health. If a stroke, heart attack, epileptic seizure happens, perhaps resulting in permanent disability as a result, then that is acceptable under our laws. I don’t think that’s right.
Similarly, it forces couples to bring to term a child that has no chance of survival for long outside the womb if at all. Forcing them, against their own judgement, to explain for weeks and months to all enquirers that their baby is dead. I have been present at stillbirths. I know it can be handled well and sensitively but I do not believe anything is served by requiring women or couples to continue with such pregnancies should they not wish to do so when there is no chance of the baby surviving.
The eighth amendment continues to exert a chilling effect on doctors. Difficult decisions that should be made by women and their doctors, a couple or the next-of-kin where there is no capacity, and on the basis of best clinical practice, are now made on foot of legal advice. That isn’t how it should be.
But it is not my right to impose my own views on others, and the current Government has no electoral mandate to do so. This is not a decision that can be rushed. We are told that Civil War politics is now behind us. Perhaps we need to ensure that the politics of the ‘Moral Civil War’ are consigned to history as well. I oppose this motion because although it is well-intended, it repeats the mistakes of the past, and replaces some old errors with some new ones.
Instead I propose that we have a considered and careful debate, and not attempt a ‘rush job’ referendum in the spring. We need a real debate and a genuine attempt to find a consensus.
The solution is not to create further moral and legal confusion but rather to try to come together to find a consensus, and in doing so we must first replace our old convictions with new compassion.