Speech by Brendan Howlin TD on the Report of the 8th Amendment Committee

17 January 2018

 

On Wednesday 4th May 1983, then Senator, Mary Robinson moved an amendment in Seanad Eireann.

 

It said that Seanad Eireann refuses to give a second reading to the Eighth Amendment to the Constitution Bill

On the grounds that the Bill is so unclear and ambiguous that it is not a proper subject for a proposal to be submitted to the people in a referendum.

 

This was the unanimous view of Labour Party Senators of which I was one.

 

The Taoiseach at that time Garret Fitzgerald described the bill as dangerous and unacceptable

At the same time he urged Fine Gael Senators to abstain on the Labour Party amendment.

The amendment to refuse the passage of the constitutional bill was lost by 18 votes to 15. 

Fine Gael Senators abstained.

At that time there were three Northern Irish Members of the Seanad who supported Labour’s position.

I believed then as now that the constitution is not the place to determine our laws on abortion.

Ireland has changed radically in the past thirty five years.

The issue of abortion has throughout this period been divisive and challenging.

 

Unlike any other issue of social policy it has not been those most directly affected who led the debate –

Not the women – tens of thousands of women, who have for the most part silently and unseen availed of abortion services outside this State.

Their voice, their experience has gone largely unheard.

Unable often to discuss their choices or their health needs with friends or even their medical practitioners.

 

 

Instead, by and large the debate thirty five years ago and since has been led by individuals and groups who come to the issue with moral certainty and crusading zeal.

 

In that context I wish to commend the work undertaken with care and openness by both the Citizen’s Assembly and the All- Party Oireachtas Committee.

I wish in particular to commend the Chair of the committee Senator Catherine Noone.

 

The report of the committee is clear and it is thorough.

The committee addressed two fundamental issues.

 

Firstly it examined the requirement or not, for constitutional reform.

The Eighth amendment to the constitution was passed on the 7th September 1983, after what the report characterised as “a bitterly contested referendum”.

I believe that characterisation is accurate, indeed understated.

 

The experience of that campaign has impacted on all political discussion of this issue until now. 

I welcome the change in atmosphere so far, although judging from some emails and letter already being received, I doubt that will continue.

 

The recommendation of the Citizen’s Assembly was to replace Article 40.3.3. with a provision that explicitly authorises the Oireachtas “to legislate to address termination of pregnancy, any rights of the unborn and any rights of pregnant women”.

 

I strongly agree with the view taken by the Oireachtas Committee regarding the effect this proposal would have on the separation of powers.

The recommended approach to repeal Article 40.3.3. simpliciter is I believe a better and safer course of action.

 

On this first and fundamental issue, that the constitution is not the appropriate place to deal with an issue as complicated as abortion impacting as it does on evolving medical practice and technology, is I believe widely supported.

 

In many ways therefore it is what will replace Article 40.3.3. by way of legislation provision in the event that the Oireachtas was free to legislate in this matter that has been the greater focus of the Oireachtas Committee.

 

Many have argued before 1983 and since that a constitutional provision is required because the Oireachtas or even the judiciary cannot be trusted on this issue.

The original objective was to tie the hands of elected T.D.’s and Senators to prevent change in our abortion laws regardless of changes in medical practice, knowledge and understanding; drugs and general access to drugs not previously available; the constitutional provision of thirty five years ago remains unaltered.

 

In all the experience of the past three decades it is clearly time for this to change. 

The Oireachtas must be given scope to address these issues in an evolving world.

 

The members of the Citizens Assembly and of the Oireachtas Committee showed how these matters can be addressed – calmly and thoroughly having regard to all the complexity surrounding abortion and maternal health.

They have provided proof –  if proof were needed that the Oireachtas – can be trusted and equally importantly, should be trusted to act in the best interests of all the people.

So the legislation that should be enacted in the event that Article. 40.3.3. was deleted from the constitution was the major focus of the Committee.

 

Thirteen recommendations from the Citizen’s Assembly in relation to the grounds on which termination of pregnancy might be lawful were all considered.

The Committee also examined the operation of the Protection of Life During Pregnancy Act 2013.

In general terms I think that it is fair to say that the Oireachtas Committee did not recommend change as extensive as that recommended by the Citizen’s Assembly.

Most clearly in relation to the Citizen’s Assembly recommendation that abortion should be lawful up to 22 weeks gestation on socio-economic grounds – that was not supported by the Oireachtas Committee,

Who recommended instead “that the law should be amended to permit termination of pregnancy with no restriction as to the reason, provided that it is availed of through a GP-led service delivered in a clinical context as determined by law and licencing practice in Ireland with a gestational limit of 12 weeks”.

 

Although this recommendation is, as I said, much more restrictive than that of the Citizen’s Assembly, it is likely still to be the most controversial of the Committee’s recommendations.

 

For that reason I think it deserves most careful consideration and an examination of the reasoning that brought the majority on the Committee to this conclusion.

In truth to fully understand the development of thought, it is necessary to have listened to or read the submissions and presentations to the Committee.

 

The report itself condenses this work into a few short paragraphs, but it is clear from the work of the Committee that when you move from general declaration to actual practice law that their recommendation make sense.

 

How can we achieve the objective of many, to allow for abortion in the case of rape or incest in any other way? 

It cannot be that we need a police investigation and court prosecution to have concluded before determining an abortion to be lawful.

To attempt to legislate for rape or incest on a stand-alone basis would open a nightmare world for traumatised women.

It would involve Gardaí and lawyers when what is needed is medical and psychological support.

The reopening of the circumstances surrounding the Kerry Babies case should be evidence enough of that.

 

Our laws have to be practical, enforceable and humane. 

The committee’s recommendation in this regard is I believe therefore the correct one. 

That view is immeasurably strengthened by the availability today of abortion pills.

Unless it is our intention to arrest and prosecute every woman who imports or takes such pills, we need to face up to that reality.

 

While there may be some who would advocate such arrests and prosecutions I have no doubt that such action would be repudiated by the majority of our people.

Not to mention the implication for women’s rights in International law.

When the matter is carefully examined, it is clear how and why the committee came to make this recommendation.

 

Another area where the Oireacthas Committee differed with the Citizen’s Assembly was in relation to allowing for abortion in the case of Foetal abnormality that is not likely to result in death before or shortly after birth up to 22 weeks gestation. 

 

The Committee’s view, with which I agree, was not to accept this recommendation.

 

The Committee recommended that provisions in the Protection of Life During Pregnancy Act 2013 need to be amended.

That Act was drafted under the constraints of Article 40.3.3.of the constitution.

I believe many of us including members such as myself who were in government when the Act was enacted will be very happy to see the Act amended in the event of constitutional change.

 

There is much more in the Report dealing with sex education, obstetric care and counselling and contraception. 

It is any important and welcome body of work.

 

It is now time for the rest of us in the Oireachtas, those who were not members of the Committee to act. 

 

We need to address without delay the steps to be taken to allow the people to have their say before the end of May.

 

The Tánaiste today set out the path before us.

 

The Minister for Health is to bring Memoranda before Cabinet between now and March. We need to pass the referendum bill.

We need to establish a Referendum Commission and allow it adequate time to do it’s important work.

Equally importantly in my opinion is to ensure that all of this is done in time for a May Referendum. 

State Examinations begin on the 6th June.

By June college students will already have left their colleges, many to travel abroad.

 

It cannot be right that those voters who have never had the opportunity to express an opinion on this matter are excluded from the vote. 

I sincerely ask that the government fix a day in late May and work back from it a timeframe to address all the matters that need to be addressed.

 

I began by reflecting back to debates in these Chambers in 1983.

Seared by the campaign that followed I express the hope that we can do things differently and more respectfully now. 

In the intervening years – as Minister for Health I had my office and home picketed.

Children’s coffins brought to my Wexford Office and posters posted in my home town.

I hope that the past is another country.

That it is possible for all of us to listen as well as to speak; to acknowledge difference without vile attack.

For my party that is what I pledge.

Labour accepts this report and it’s recommendations.

We will campaign for change with vigour but with respect.

 

My party has been at the forefront of social change for as long as I can remember – campaigns that look amazing in retrospect –

To provide for legal contraception; to allow for divorce and most recently to provide for Marriage equality. 

All in their time were strongly resisted.

All in their time came to pass. Often we discover that the people’s thinking on social policy is more advanced than the elected Members of these Houses.

Let the people decide this matter.

Let us also work to ensure that they can do so in an atmosphere of reason and without interference from groups or elements outside our State.

No doubt many groups will engage in this campaign – some will seek to characterise it as something which it is not.

 

What is in question here is an important matter of social policy for our people: not the contest of state and church or the defeat of anyone.

Simply and importantly a matter of supreme importance to thousands of our citizens as families and individual women try to make the best possible decision for themselves and their loved ones.

 

After decades of fear the people in 2015 overwhelmingly passes a constitutional amendment to allow same sex marriage –

For many who voted yes that was a journey of self-discovery and tolerance – perhaps we can hope for something similar on this issue too.

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