Joint Committee on Health and Children
Public hearings on the Protection of Life During Pregnancy (Heads of) Bill 2013
Statement/Submission by Judge Catherine McGuinness
Tuesday 21st May 2013
I appreciate the constitutional constraints which apply to the Government in bringing forward
this legislation and in framing the General Scheme of the Protection of Life During Pregnancy
Bill 2013. I am in general support of the Heads of Bill as set out and it appears to me that they
are consonant with the provisions of the Constitution as interpreted by the Supreme Court in
Attorney-General v X.
As I said in my previous oral evidence to this Committee, I see myself as expressing the middle
ground in the debate which has surrounded the proposed legislation. Despite the emphatic, not
to say virulent, nature of some of the argumentation on both sides I remain convinced that very
many Irish people will approve the action of the Government in finally bringing forward
legislation in accordance with the Constitution in this difficult area.
The Committee has kindly invited me to present my views on the proposed legislation. It would
be fair to point out that, in addition to any legal expertise which I may possess, I am a member of
the Working Group set up by the Standing Committee of the General Synod of the Church of
Ireland which has already made written submissions to your Committee on the Heads of Bill as
set out. I am in general agreement with these submissions.
From a legal point of view I consider that the Heads of Bill are well and carefully drafted so as to
provide for termination of pregnancy where that is constitutionally permitted, and to clarify the
position of medical personnel involved in such cases. I will add some brief comments on
individual Heads, which can if necessary be enlarged in oral evidence.
Head 1 – Interpretation
“Appropriate location”: I welcome the fact that termination of pregnancy will be allowed only
in the 19 public obstetric facilities in the State, except in cases of emergency. I understand that
some concern has been expressed that what are described as “Catholic hospitals/institutions”
would be involved, but this is not the case. All the public concerned facilities are fully
supported by the generality of the tax-paying public and thus may not be governed by any
particular religious rulings.
“reasonable opinion”: This definition gives adequate expression to the importance of good faith
on the part of the person forming the opinion and usefully includes the phrase “as far as
practicable”. It is a definition which takes account of the realities of human life.
It is also welcome that the various definitions included in Head 1 and the provisions contained in
later Heads make provision to ensure that there will be adequate regulation, registration, quality
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control and audit of the facilities carrying out termination of pregnancy and that the decision to
carry out a termination of pregnancy will be taken at a senior clinical level.
“unborn”: I accept that this definition is based on the Supreme Court judgement in the Roche
case. However, it should be pointed out that this definition of the personhood of the unborn is
not universally agreed.
Heads 2 and 3
These Heads have proved to be relatively uncontroversial. In that they deal with medical and
emergency situations they are drafted in accordance with the present constitutional framework.
It is perhaps unfortunate that the situation where the foetus is clearly unviable has not been
included, and at least the situation where the foetus is dead before birth might have been dealt
with by a change in the definition of “unborn”.
Heads 4-8 Risk of loss of life from self-destruction:
There has been considerable opposition to these Heads by groups opposed to abortion, including
an extreme level of lobbying of individual members of the Oireachtas. Nevertheless, this
ground is included in the Supreme Court’s decision in the X case. The removal of this ground
for termination of pregnancy would require a further referendum. This constitutional position
has been conceded, however reluctantly, by the more rational and legally aware representatives
of anti-abortion groups. In my previous oral evidence to the Committee I dealt with the detail of
the judgments of the Supreme Court in X, and with the importance of harmonious interpretation
of the Constitution as stressed by Chief Justice Finlay, and I do not wish to repeat this here.
Repeated use of terms like “a flawed judgement” are in truth irrelevant, and are also often based
on a failure to read either the actual judgments or the actual evidence in the case. I am aware of
practical difficulties which can arise from the actual operation of this ground. The insistence on
relying on a threat to the mother’s actual life, rather than to her health, is likely to lead to the
initiation of grounds such as this.
It is argued that the inclusion of Head 4 in the proposed legislation will lead inevitably to a
widespread increase in termination of pregnancy. It seems to me that the procedure as set out in
the Heads of Bill is quite sufficiently rigorous to ensure that very few cases indeed will be dealt
with under this Head. From a practical point of view it could well be argued that the procedure
is so rigorous that women in this situation would be most likely to choose the option of going
abroad for a termination rather than applying under this Head.
I consider that discussion on the medical aspects of this Head is best left to the medical
witnesses. I would, however, venture a comment on the fears so constantly expressed that this
Head will “open the floodgates” to “abortion on demand”. It seems to me that there is an
illogicality in the arguments being made. On the one hand it is extremely strongly asserted that
Irish people in general reject abortion and that the various forms of public lobbying demonstrate
that this is the case. On the other hand it is argued that if the door is even slightly opened to the
obtaining of a termination of pregnancy, even in the extremely narrow terms of the proposed
legislation, there will be a flood of Irish women seeking abortions on false excuses and that these
women will be supported by a numerous flock of Irish doctors willing to collaborate with them.
Who are these supposed women if they are not Irish people? Where are these doctors? Surely
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there is an inherent contradiction here, and the “floodgates” argument assumes that the reality is
that there is a large proportion of the Irish public who actually want wider access to abortion, and
will get it unless they are legally prevented by a minority who oppose this access? The results
of public opinion polls on the subject may be relevant to thinking about this.
Heads 10 and 11
These provisions on notification, recording and reporting to the Minister are welcome. It is very
important that clear information on the operation of the legislation should be kept under review.
I consider that all annual reports of the operation of the legislation should be published, while, of
course, providing for anonymity of the individuals concerned.
Head 12
Conscientious objection is rightly limited to individuals rather than institutions under this Head.
Head 13
I accept the wisdom of including this Head. It does, however, underline the ambiguity (at least)
of a situation where the fact is that abortion is quite widely availed of by Irish citizens despite the
very terms of the constitutional provision and of the proposed legislation. This situation has
been borne out by the results of the various referenda which have taken place over the years.
Head 19
The proposed long overdue repeal of sections 58 and 59 of the Offences against the Person Act
1861 is welcome and I accept that modern legislation covering offences is necessary. I am
somewhat concerned at the level of maximum sentence where this may apply in the case of an
individual offence by one woman and one doctor as opposed to a situation where a doctor or a
body corporate carries out numbers of illegal terminations. Would it be desirable to differentiate
these situations as regards maximum sentence? It will be rightly argued that both the discretion
afforded to the Director of Public Prosecutions in 19(4) and the normal discretion of the judiciary
in imposing sentence will apply in ensuring that injustice does not arise. However, it is not
necessarily ideal to rely on the correct application of discretion. One might recall in this context
the recurring controversy over the age of consent to sexual intercourse.
General
It might here be appropriate to refer to the issue raised by Archbishop Martin in his letter to The
Irish Times published on 16th May 2013. The concern of the Archbishop is understandable, and
in fact might possibly arise under other Heads of the Bill as well as Head 4 which the
Archbishop specifically mentions. In my view this is an unfortunate outworking of the original
insistence in 1983 of including the rights of the unborn and of the mother in a constitutional
rather than a legislative provision. The situation where there is “a clear presumption that (the
child) is viable outside the womb” is unlikely to arise where termination is forbidden after a
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certain stage of the pregnancy is reached. As is inferred by the Archbishop in the concluding
sentence of his letter, this situation is covered in the laws of many other jurisdictions. As I
understand it, the government has met criticisms on the omission of a similar prohibition of late
abortions by pointing out that a human right under the Constitution cannot be time-limited in this
way. It appears to me that the government is correct in this. We are therefore left with the
position that because we sought in amending the Constitution to prevent abortion, we now find it
inadmissible to introduce desirable and proper legislation for a time limit on termination. The
warnings of the Attorneys General regarding the 1983 amendment are still relevant.
I am also reminded of the statement issued in 1982 by the Standing Committee of the General
Synod of the Church of Ireland:
“In our opinion a proposed amendment to the Constitution and a referendum will not alter the
human situation as it exists in this country, contribute to its amelioration or propose a
responsible and informed attitude to the issue of abortion. We gravely doubt the wisdom of
using constitutional prohibitions as a means of dealing with complex moral and social
problems.”
The issues dealt with in the Heads of Bill is always characterised as difficult and sensitive. This
is true, but these very issues are made far more difficult by the behaviour and methods used by
the more determined advocates of both lines of argument. Clearly all groups have the right to
express their views publicly, but lobbying can descend to a level which can only be described as
abusive, or downright bullying. It is to be hoped that public representatives who have been
subjected to this kind of behaviour will not suffer any damage and will be able to stand clear of it
and make their own judgment.
_____________________________________
Catherine McGuinness
16th May 2013
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