‘You Allow An Unconstitutional Bill On Property Rights But Not Women’s Rights?’


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Independents 4 Change TD Clare Daly (top) and Fine Gael Health Minister Simon Harris

This evening.

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.


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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

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31 thoughts on “‘You Allow An Unconstitutional Bill On Property Rights But Not Women’s Rights?’

  1. Sheik Yahbouti

    How much longer will Indah and his merry men permit this disgraceful situation to continue? Stuff your ‘Citizens Convention’ where the sun don’t shine. Bring on the necessary referendum, however “divisive” it may be. Any matter requiring a vote to decide it is, by definition, “divisive”. Stop hiding behind these worn out slogans.

  2. The Real Jane

    It’s genuinely shocking that there will be plenty of people sitting there not really bothering their bottoms to listen.

  3. Spaghetti Hoop

    I know this topic is well-featured on Broadsheet and has been a focus of Irish society for as long as my years but for heaven’s sake can Ireland not take the plunge now in the second decade of the 21st Century and hold a referendum? Within this new backdrop of referenda. Now that everyone is properly informed. Enda do a Cameron as he’s retiring anyway? The constant debate is pulling valuable political time away from the steerage of the country and I admit to being quite sick of it, without insulting the chief campaigners. The issue has outgrown itself. It’s ballooned into something more than the procedure!

      1. Spaghetti Hoop

        Not people’s but maybe the nation’s. Ireland’s wrangling over the abortion issue is clerical backwash. It’s a simple procedure; curtails the population and unwanted kids. Reduce them down and you have an infrastructure that can serve.

  4. newsjustin

    Does anyone care to explain how a bill that would allow for the abortion of a living human foetus, even a terminally ill one, where the mother’s life is not at risk, could be constitutional?

    I’m not looking for a repeat of the “let the Supreme Court tell us it isn’t” mantra. I’d just like a theory as to how it could be constitutional.

      1. newsjustin

        Thank you very much Caroline.

        I don’t buy that argument at all. The X case presented a very specific set of circumstances which called for guidance on balancing the right to life of the mother and the unborn. The issue of FFM is utterly different with no risk to the life of the mother.

        The longer article is interesting but their reasoning ix simply a lengthy way of proposing that the life of a sick or disabled foetus is worth less than a healthy foetus and so can be aborted. That’s not what the constitution says or could be interpreted to mean. It is just, as I’ve said repeatedly on this issue, wishful thinking.

        1. Anne

          It’s not protection of life, as the foetus will not have a life. It’s very simple.

          It’s absurd and cruel to force a woman to carry a foetus that will not survive outside the mother’s womb .. to force her to go through the mental and physical stress of that pregnancy, if she doesn’t want to. A lot of these women would need to work through these pregnancies. It’s cruel and inhumane… To force her to skulk off to England, carrying remains back in a box.

          1. newsjustin

            But the foetus does have a life. If the foetus is not dead it very obviously is alive. What’s more many seriously ill foetuses will live after being born, some for a very short time, some for much longer. You’re just not right to say “the foetus will not have a life.”

          2. mildred st. meadowlark

            “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

            As far as practicable. If there is evidence to suggest that the foetus is incapable of living independently of it’s mother, then why should a mother be denied the option of an abortion? How is it practicable to defend the right to life of something that will not *live*?

            Saying that there are cases where a foetus has been diagnosed with FFA and it has gone on to live is all well and good, but these cases are rare enough and forcing a woman to continue a pregnancy, living with the knowledge that the child cannot survive is inhumane.

          3. Cup of tea anyone?

            Justin. What about the foetus that wont live. or that are not technically alive.
            If the feotus does not have a proper heartbeat and has no brain function is it alive or is in in a state of life support?

            Who benefits from that foetus coming full term? Noone

            Who suffers if the baby is brought to the full term? The Woman

            Who suffers if the baby is terminated? The Woman

            Who should decides on what choices the woman has? Justin

            yes to the w

        2. The Real Jane

          Your flippancy about women’s health is very telling, Justin. Every pregnancy and birth pose a threat to the life and health of the woman carrying it. You would do well to remember that.

          I know it’s much harder to be sentimental about living, breathing adults who make mistakes in their lives or just plain old don’t do what you want them to do when set beside lovely little cute babies, but if you want to make your arguments palatable, minimizing the fact that there is no such thing as a risk free pregnancy isn’t the way to do it.

          Pretend to have some respect for women.

          1. Starina

            nah, if he doesn’t pretend, then we can see him for the snake he is rather than getting a nasty surprise.

          2. newsjustin

            Jane – clearly you have no argument against my claim that this bill is unconstitutional as you’ve just dived into emotive nonsense claiming I have no respect for women.

          3. Starina

            a classic weapon against women’s arguments – saying they’re too emotional or emotionally invested to be logical. we see you, newsjustin.

          4. newsjustin

            And a classic defensive ploy of people who have no argument – “you’re being sexist”.

            I see you too Starina. You’re right there.

          5. The Real Jane

            Well I’m not pretending to be a constitutional lawyer on the internet, if that’s what you mean. But the fact that you are unable to acknowledge the risk that any pregnancy poses to any woman (and go so far as to state that there is no risk) suggests that you have no interest in this topic other than to curtail the rights of women to control their lives and bodies.

            That, to me, raises suspicions about your attitude to women.

        3. Donal

          Justin, I don’t care what argument you buy, unless you sit in the Supreme Court your opinion counts for nothing. You are entitled to your opinion but it’s worth no more than mine.

          1. newsjustin

            Oh sure Donal. But it shouldn’t be such a mystery why the Attorney General has advised that this is unconstitutional. Given that it is, you know, entirely unconstitutional.

      1. Sheik Yahbouti

        Me life on ya D’EL, add in ‘they need to be kept in their place, wouldn’t trust them an inch’ and you have it in a nutshell. Awful lot of female self loathers too, it would appear.

        1. Anne


          I’d say the Taliban and the Arabs treat their women better than the Irish.

          Lots of female women haters too.. defo.

        2. The Real Jane

          Well that’s basically it, isn’t it?

          It’s a whole load of people saying that they’ve never met a single individual woman but they’re better placed to judge her life and circumstances – without even knowing what they are – than she is herself. It’s just so disrespectful towards women and really showing up the lack of respect for women and their ability to make decisions for their own lives.

          1. ahjayzis

            It’s wholesale nationalisation of a woman’s insides from the moment of conception. We ALL get a say on your body, sure isn’t that democracy and isn’t it grand.

  5. 15 cent

    usually politicians take the side thats most popular with the public. obviously, for votes. ie. when they saw the majority wanted marriage rights for everyone, they took that side. but this .. this ones odd, because the majority do want a referendum on abortion, but they arent taking advantage. i think its because the 8th amendment is the one thing Kenny believes in. The one and only thing he feels strongly about, and its the most messed up and wrong. well the other thing he cares about is being popular. so all in all he wants women to suffer and people to love him for it.

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