Independents 4 Change TD Clare Daly (top) and Fine Gael Health Minister Simon Harris
A debate took place in the Dáil on Independents 4 Change TD Mick Wallace’s bill – to allow for abortions in Ireland in the case of fatal foetal abnormalities.
A vote on the bill will take place next week.
You may recall how Independents 4 Change TD Clare Daly proposed an identical bill last year but it was deemed unconstitutional by the Attorney General, Maire Whelan – prompting Legal Coffee Drinker to respond.
Mr Wallace’s bill has also been deemed unconstitutional, prompting him to call for Ms Whelan’s advice to be published.
From Ms Daly’s speech this evening…
We have the Attorney General saying it’s unconstitutional. Now I have to say that is a pathetic cop-out. It’s an excuse for inaction. As you know, we wrote to you minister asking for you to publish that opinion, so that it can be assessed and considered, at the very least, that’s a minimum.
Because there were 43 other legal people who published a letter [to the Irish Times] last time around which had a different opinion to this Attorney General.
And I note your response, which you sent us this afternoon, where you said that her advice is ‘in line with legal advice received on the issue of fatal foetal abnormalities, at the time of Protection of Life During Pregnancy Bill’ [debated in summer of 2013].
Now that’s interesting. Because that confirms to us that that advice wasn’t sought in relation to this bill last time round, nor this time round. And it certainly would be saying that it wasn’t sought in the context of the violations of international human rights.
But again we have to return to the simple legal fact that Attorney Generals can get it wrong. This Attorney General certainly has got it wrong quite a few times.
Other Attorney Generals have had a different view on this issue. Other Attorney Generals got it wrong before. They got it wrong in the X case.
And the truth of the matter is, whether it’s constitutional or not, can only be decided by the courts. It’s as simple as that.
This is not repugnant to the constitution, it’s not in the sense clearly contradictory. At the very minimum there is at least an arguable case that it could be possible for somebody in the circumstances of being diagnosed with a fatal foetal abnormality to get a termination in Ireland.
How do I know that? Because that’s exactly the position that the Irish State argued 10 years ago this week, in front of the European Court of Human Rights.
And sadly, the European Court of Human Rights agreed with them because they said that the State had put forward a tenable argument which could have been seriously considered by the domestic courts, that a foetus wasn’t an unborn for the purpose of the article and, even if it was, it’s right to life wasn’t going to be engaged and therefore it did not benefit from the protection of article 40.3.3.
They talked about that the courts wouldn’t operate with remorseless logic, they said that the woman in the case in question, that her case wasn’t admissible because Ireland had shown that the remedy was possible in the domestic courts; that she had a reasonable prospect of success against her courts.
But, of course, our courts never ended up testing this matter. And do you know what? They never will. Because how in god’s name could we expect somebody, whose world, the bottom has fallen out of their world with a diagnosis of a fatal foetal abnormality in the case of a much-wanted pregnancy. At their lowest ebb. And we expect them to go into the courts and argue for the rights to have a termination at home? When they’ve enough pressing things on their plate. That is never going to happen.
But it is also the case that our courts have never adjudicated on this and the only way in which they will adjudicate on it is if we pass this bill and if we allow the President to refer it on to the Supreme Court for adjudication in that regard.
The sensibilities of the Attorney General are of less concern to me. Now obviously if we come in with the bill that your party colleague, which I will be welcoming, mentioned on the radio this morning, that she’s looking to reduce the time limit for divorce for example.
If that bill came in here, as a bill to the house. That would be clearly unconstitutional because the bill says, or the constitution says that divorce has to be a period of separation for four years. So if the deputy brought that as a bill, it would be clearly unconstitutional.
Our bill isn’t clearly unconstitutional at all and that is an absolute fact. And in fairness this Attorney General was wildly criticised by the Fennelly Commission, amongst others, so I don’t accept the point made by the deputies that this is muddying water, that it’s standing in the way of a repeal of the 8th amendment, I could maybe buy that if the choice the Government was giving us was withdraw this amendment, or withdraw this bill and we’ll give you a referendum on the constitution.
If you were doing that tonight we would certainly consider that. I think that would be..but that’s not the offer in town tonight. The offer in town is that the status quo continues.
…The last point, Ceann Comhairle, is to remind this Government, and appeal to the backbenchers, three, four weeks ago, you said a bill on property rights was unconstitutional. You allowed that bill to go through. By god, you can at least do it on terms of women’s rights.
Independent Alliance TD John Halligan
“The time has come, in 2016, to face up to reality. We cannot continually export problems out of this country. I don’t know if this bill is anti-constitutional. And I don’t care. I care about the women tomorrow, next week, the week after that, who will have to get on a plane or a ship and go to Liverpool or Manchester or Newcastle and bring the foetus back in a box in the back of a car which has happened.”
“This is Ireland 2016, not Ireland 1920. We cannot continue to allow this to happen. Year after year, we find excuses to legally, or otherwise, as to why we prohibit a woman from leaving this country.”
“The Irish Times, people should go back to the Irish Times with an image of Ireland surrounded by a barbed wire fence and a woman on a ladder trying to get out.”
“This is 2016, this can no longer be allowed happen. The time has come for people to stand their ground. We must stand our ground on this. We must do it.”
“For the thousands of women over the next couple of years. And by the way for the women who cannot wait another six months, or can’t wait another year, or can’t wait two years. And I haven’t even begun to speak about women who are violated and raped. We tell them: go through your nine months and have your child whether you like it or not.”
“That we allow this to happen in Ireland in 2016, it’s completely unacceptable.”
Waterford Independent Alliance TD John Halligan speaking in the Dáil during the debate.
Watch the debate live here
Previously: Publish And Be Damned