“We Have A System That Is Actually Working.”


Mayo Fine Gael TD Michelle Mulherin (top) went on Newstalk’s lunchtime show with Jonathan Healy yesterday to discuss with Dearbhail McDonald (above) – the implications following the death of Savita Halappanavar.


…the need for clarity

Jonathan Healy: “It has given rise to the question again about legislation and there is a lack of legislation in this country. We’ve had a number of doctors on our station today, and they’ve been speaking on other stations aswell, saying that they need clarity in relation to this. The Tánaiste said they’re going to bring swift legal clarity to this. How quickly do you think that can be done?

Michelle Mulherin: Ok. Well, just seeing as you started off the story talking about the case of Savita and her loss, the loss of her life in circumstances we don’t fully know and even if we know some facts and we need, I suppose, a medical interpretation of how events preceded. I think we have to begin at a point here that, and it seems to be accepted across the board that this country is one of the safest places in the world to have a baby and therefore one of the safest places in the world to be a mother giving birth and delivering a baby. So we have a case now where a woman has lost her life. Now, well we have to think that, for the most part, we have a system that’s actually working and until we would…

Healy: “Michelle…”

Mulherin: “If I could, if I can just say…”

Healy: “I just want to bring in a point and I’m presuming you’ve heard. We had Peter Boylan on this programme earlier on. We had the Master of the Holles Street Maternity Hospital this morning saying to us, very explicitly, that they need legislation so they know that they are operating within the law. They are saying that legal action, sorry, that legislation is needed and that it is the likes of yourself and others in Leinster House that need to take the leadership on this.”

Mulherin: “OK.. And I won’t disagree, that there has to be leadership and there has to be clarity but it also has to be said that at the moment that, as regards the law, the Irish law, and as regards medical ethics that, when there are life-threatening complications to a mother and they are identified, it’s not a case of ‘well, the doctor might of mightn’t whatever their personal view is on the situation’, they are obliged to act to preserve the life of the mother. And that means that we know there is an equal right to life: the mother and the unborn. But, where the life of the mother, where there’s a real and substantial risk, from what the X case tells us, that means they have to act, they have to intervene and if, as a result of an intervention to save that woman’s life, the baby is lost, well then that is lawful in our, within our country…”

Healy: “So you’re telling us we don’t need legislation?”

Mulherin: “We have to start at that point and really put it in context. And really, in this situation, that that standard of care and level of care was not meted out, well then, which will be revealed by an inquiry, in relation to the tragic case that we’re talking about, well then necessary action has to be taken. In relation to the clarity, I would agree. And, what I would agree here is, at the end of the day, it’s a medical decision. So we go to doctors and we say to doctors, is this a real and substantial risk to the life of the mother? So, it bats back to the doctor so what we’re really here asking this expert group is we’re not going into the area of abortion on demand. We’re saying that, in the case of a real and substantial risk to the life of the mother, which I presume, as medical science progresses, that the view can be different on this, so it’s not something that’s cast in stone. So what we’re asking doctors, in a way, in conjunction with lawyers, on this expert group, to report back to us the public, who are not the experts, and say that these are the circumstances…”

Healy: “Can I just bring in Dearbhail McDonald, who is the legal affairs correspondent with the Irish Independent, who’s been listening to Michelle Mulherin there, Dearbhail?”

McDonald: “Listening and shaking my head and speaking in a personal capacity, it’s that kind of response from one of the few female legislators that we have that makes me despair as a woman, as a sister, as a daughter, as someone who hopes to be a mother one day, that there is simply that level of denial on the Fine Gael backbenches of the need for legislation. Whether you are pro-choice, whether you are anti-choice/pro-life, whatever label you pick to choose, there is a need for clarity. The constitutional…”

Mulherin: “I, I…I’ve said that, what are you talking about…”

McDonald: “Excuse me..but you’re not taking it that step further…”

Mulherin: “You’re taking it to a personal level…”

McDonald: “Michelle, you were given a great run there, if you’d let me just, if you’d let me just finish. What worries me about Fine Gael, in particular, is that the Constitutional position, and not everyone is happy with it, is that, as Michelle has said, is that if there’s a real and substantial risk to the life of the mother, as distinct from a health risk, that includes suicide, there should be, that abortions are allowed in those circumstances, what the Supreme Court said, back in 1992, the late Niall McCarthy, when he said look we are not judges, it’s not our job to program society. The failure of the legislature, of the body politic, to legislate in this area is in excusable. Here we are in 20 years later. Twenty years later. And there’s a risk, if Michelle’s kind of reluctance to admit the need for legislation that would assist, like you heard Jonathan this morning, on your news station, and on others, doctors, you know, speaking about what the European Court of Human Rights recognised in Strasbourg, as the chilling effect of criminalisation, in conjunction with the lack of clarity in our laws. So our politicians, you know, and again, we don’t know the circumstances of Savita’s death. But what her death has done, has catapulted this issue back and here we are. We need laws, for wherever on the spectrum you lie, we need laws that give our doctors confidence to make the decisions that they do in distressing situations and we need confidence for women. And, of course, Ireland is one of the safest places for women to give birth but I can assure you that there are women out there today just wondering, ‘well if that was me, and in that situation, would my doctor be afraid to act because of these laws criminalised’. Our body politic of which Michelle is an active and prominent member, must do that now, they must legislate, they must execute their political duty and serve everybody well in this situation. And what worries me is that there’s a contingency within Fine Gael that seems reluctant to go that extra step and legislate.”

Healy: “Michelle Muherin.”

Mulherin: “No, sorry. Look, look. That, that. What’s happening here is and unfortunately I saw on this poor woman’s story, there’s an extreme of one side and we’ve an extreme on another side. We are acting in a very responsible way, in accordance with the Programme for Government. We have put an expert group in place. It is not my job to pre-empt what they have to say…”
Talk over each other
McDonald: “Do you support legislation, Michelle? Do you support legislation?”

Mulherin: “Sorry now, Dearbhail, excuse me, excuse me. I’m a very, I’ve a great appetite for straight talking…”

McDonald: “Well do you support legislation?”

Mulherin: “No, no, as far as I’m concerned, we see what this has to say, we see what the report has to say, if I’m going to be, for the sake of, you know, crystal ball gazing and saying here, ‘well, actually, you know it should be X, Y and a Z, without respect to the fact that we have a group that are looking at something which has not been done before. So. The idea…It’s absolutely ridiculous to say there’s no serious approach…”

Healy: “Can I phrase the question a different way? Can I phrase the question in a different way, Michelle? If the Government, can I just ask you, if the Government proposes…”

Mulherin: “No, can I just say one thing? Can I finish? We have a judgement here that we’re very prepared to deal with, the A,B,C case, the European Court of Human Rights and we have the X case and yes, there should be clarity but let’s be very clear.”

McDonald: “In law, clarity in law, Michelle.”

Mulherin: “No, because the idea is, we’re all clear and the law stands that there’ll be no abortion on demand, we have to tease out the implications of when a woman can access, and yes, so there can be clarity for doctors but as far as I’m concerned at the moment the, the..the mother, the doctors are entitled to act and must act to save the life of the mother. And if a doctor has not done this, well then the doctor is in the wrong.”

Healy: “Well we don’t know…”

Mulherin: “No, sorry, I’m talking about across the board, in any case. In any case, in any case. And that’s the protection that people have at the…”

Healy: “If the Government, of which you area part of, on the back of this, produces legislation that you are uncomfortable with, for whatever position you draw, will you back it because you’re a member of that Government or would you be willing to walk away?”

Mulherin: “Sorry, hold on, this isn’t about politics. This is about teasing out one of the most sensitive issues in our country, one of the most inflammatory issues in this country, as I say, on both sides. I will face up to, in relation to the objective of the X case which is that a mother should not lose her life because she’s given a baby, she’s given birth to a child or she’s pregnant. That is the law of the land and that is not because one is pro-life or pro-choice, religious or not religious, that is the law of the land at the moment. We have to get clarity surrounding the thinking of doctors so that us, as a general public, can point and say ‘well this is, in this circumstances, what that means’. But at the end of the day, can I just really say…”

Healy: “There’s no-one disagreeing on the issue of clarity. Dearbhail, I’ll let you finish in a minute.Michelle:we’ve a little bit of time, so there’s no rush anywhere. Dearbhail?

McDonald: “In the course of five minutes, my despair is now kind of bordering on contempt. I attended two years ago, Jonathan, a European Court of Human Rights hearing in the ABC case, involving Ireland, where the State was brought before the Strasbourg court and what the Ireland legal representation said at that stage was look, you know, referencing the X case and the Supreme Court, they said there’s a clear and bright blue line in Irish law that everybody knows of and is aware of. And the European Court of Human Rights said ‘no there isn’t’ where it’s in respect to Ireland’s general, you know, you know, Ireland’s profound moral opposition to abortion on demand. You have an existing Constitutional right to abortion, as per the X case and you know there isn’t a clear and bright blue line because there is no, there is nothing in the law to assist the courts and others. And what I’ve heard or actually what I’m picking up on more from Michelle is what she’s not saying because she’s telling us that she wants clarity, clarity, clarity but when we ask the direct question do you support legislation because what is clarity in a legal context, it is law. And all, and what the European Court of Human Rights, and what many people are looking for, I don’t think there’s any prospect of looking for abortion on demand in Ireland. But what we people are saying is…”

Mulherin: “Are you, are you…”

McDonald: “People are saying is ‘put into the law’. You know when you talk about clarity in a legal context, what you’re talking about is the law and what people are saying ‘put into the law. put into the law the constitutional position that it is, put into law, put into statute, the legal effect to the X case ruling. And that’s what just really, really makes me angry and despair because people are talking about Savita’s case being a tipping point and to be honest, not if the view as articulated, or not articulated by Michelle in the course of this conversation, if that is carried through in our body politic, I am just so angry that she can’t even answer the question, ‘would you support legislation’.”

Healy: “Michelle, can you respond to that please.
McDonald: No, look, we have a report, we have to see what is recommended in the report and yes, the move then is towards clarity and in whatever way that needs to be done, then we do it.”

Healy: “There’s no movement…”
[Talk over each other]

Healy: “I’m in the middle here. Can I just ask you, there’s no need to move toward clarity. We need clarity. We don’t need to move towards clarity.”

Mulherin: “Well, ok. That sounds like we’re splitting hairs. We…Once the report is in place, we act on foot of the report. We act on foot of the report, in relation to the, the, as I said, at the end of the day, it’s to do with establishing, from the point of view of the person who is the ordinary person and in this case the woman what the criteria is, or what the guidelines are, or what the law is, whatever you want to call it. So that I can know well, in this circumstance, doctors are considering this a real and substantial risk to the life of the mother. But I think it should, you know, there’s talk here as though there’s no protection for women.”

McDonald: “All doctors want is legal protection.”

Mulherin: “There is protection for women in this country and you know it’s very easy to give lip service to say this is a safe place to have babies, either it is or it isn’t a safe place to have babies. And if there’s a particular cases that arise then we deal with those. And yes, we also have to deal with the implications of the ABC case and I don’t know, I, like, wherever you’re getting the idea that we’re trying to avoid something or not deal with something, we’re waiting on a report that is a very responsible thing to do. We’re waiting….”

Healy: “You have the report now, when do you think there will be clarity?”

Mulherin: “I don’t have the report. The report is with the minister. And the minister…the minister…”

Healy: “The Government has the report, of which you’re a member…”

Mulherin: “Pardon?”

Healy: The Government has the report, of which you are a member.

Mulherin: “Sorry, now. I don’t see the report. The minister sees the report, he deals with Cabinet, then, then we see the report. And yes, to tell you the truth, I welcome, the sooner the better the report is published. Because this isn’t, this a debate that’s a bigger debate than something beyond politicians. And I’m very mindful of that.”

Healy: “OK.”

Mulherin: “So, you know, this is spurious sort of stuff. We are going to act and we will act in a clear fashion and it will be left very clear the whole situation in relation to our implementation of the ABC ruling, very, very clear.”

Healy: “I have to leave it there, Michelle.”

Previously: She So Forni

Mulherin: The Saturday Night Show Transcript

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