Chairman: We are now in public session and I welcome to this meeting of the Joint Committee on the Constitution the following representatives of the Irish Family Planning Association: Mr. Tony O'Brien, chief executive; Ms Cherie de Burgh, director of counselling; Catherine Forde, honorary legal counsel; and Dr. Niall O'Leary, special adviser and general practitioner. We have received your presentation which has been circulated to members and tabled in the Houses of the Oireachtas. The format of this meeting is that you may, if you wish, elaborate on your submission. That will be followed by a question and answer session with the members. Your attention is drawn to the fact that while members of the committee have absolute privilege, the same privilege does not apply to you. I take it that you propose to elaborate on the submission, Mr. O'Brien?

Mr. T. O'Brien: Thank you, Chairman. By way of a slightly enhanced introduction, I would emphasise that the pregnancy counselling service the IFPA provides, which my colleague Cherie de Burgh directs, counselled 2,080 women in 1999, of which 1,169 asked for abortion information within the meaning of the 1995 Act. Some 305 women had first contact with us post-abortion. Our service also provides training to a wide range of other service providers, including general practitioners and the organisation Cherish. That is by way of background.

Your hearings so far, Chairman, have been very much concerned, as we read them, with what are generally called the hard cases. We have also noted some negative and somewhat dismissive references to other types of abortion, which have been characterised here as social abortions. We think this dichotomy is false. For those involved, every abortion is a hard case. Our aim today is, if we can, to help turn your attention to the everyday realities of Irish abortion for thousands of women and couples. We would say that any discussion which invests its concern only in the so-called hard cases would be irrelevant to the daily reality of Irish abortion and the needs of the women and men and their families who experience it. On reviewing the extensive medical evidence which you have heard, it does not appear to us, in the main, to have been from persons actually involved in dealing with women experiencing everyday crisis pregnancy. This year we expect that more than 6,500 women will give an Irish address when in an English abortion clinic, while countless other Irish women will use convenience addresses and very few of that total will be reflected in the hard cases that you've been discussing.

At this very moment, there are very certainly 20 to 30 Irish women in English abortion clinics and some of them will be in a clinic which is no more than 120 miles from the room we're in this morning. We would very much doubt that more than one or two of them at the very most would fit the working definition which we've heard here - hard cases - or, on their journey, would have come next or near many of your previous witnesses.

We would also argue that the long running and delayed debate has been not so much about abortion as about geography and perhaps about abortion law and also that the protracted nature of the debate prior to the publication of the Green Paper, which we very much welcome, has also been part of the problem. Given that we're in a country which may very well now be contemplating a fifth referendum on the abortion issues in under 18 years, it is perhaps shocking to note that no Government to date has ever published a quantified target for the reduction of the number of teenage pregnancies, a quantified target for adoption in unplanned pregnancy in general, a quantified target for reduction in sexually transmitted infections or, indeed, a quantified target for the reduction in the incidence of Irish abortion. Any commitment to minimise the incidence of Irish abortion or, indeed, to improve sexual health more generally will require far more than the overdue scrapping of some bizarre laws. It requires concerted action, targeted resources and clear policy and we are sorry to say that to date we've seen evidence of none of those.

We hope that the committee can come to share a vision which we have of a society in which we are all committed to meaningful action to reduce the causes of abortion rather than simply trying to wish it away in the midst of what we would characterise as a moralistic haze and the vision of a society in which we treat all women with equal respect and care whatever their decision.

We've also been disappointed to hear the phrase "opening the floodgates" cropping up here in recent weeks. We're at a loss to know what the precise nature of these alleged floodgates is. If your committee, as part of this process, wished to hear evidence from the Irish women who have had abortions in the past two decades and assuming you could persuade them to come and talk, no room at your disposal would suffice. You'd really need to hire Croke Park over several days in order to accommodate them all. So we really don't understand this reference to floodgates.

While many different factors are considered by those experiencing a crisis pregnancy, it is our experience that the current state of the law in Ireland is not one of them. So the reality is that more than one in ten Irish conceptions ends in abortion. The reality is that those abortions occur later in pregnancy than would be the case if those abortions were available here. Hitherto, as a society, we haven't really done anything about that. We strongly contend that this society can and must do much better. Thank you, Chairman. That concludes our opening statement.

Senator O'Donovan: First, I'd like to welcome you here. I've just one question. I've listened with interest to what you've said. I was interested in what the Irish Medical Council said, in its submission, which I felt was rather conservative. It has a particular stance on existing practice in this country and maybe I was one of the people who mentioned the question of opening the floodgates. The views I got from some of these consultants..... you might argue, and correctly so, that they may not have first hand experience of women who become pregnant and seek help, advice and counselling..... they're obviously at the coalface ..... they also admitted, I think, that it's only when they get into the maternity units that they're faced with this situation. I got the distinct impression from the Irish Medical Council, which is an umbrella organisation covering obstetricians and gynaecologists, and I think all doctors are affiliated, that, in a scenario like in England where abortion has been legalised on whatever terms, in this country if we had a more flexible attitude, leaving aside the social grounds, most of its members, if not all, would be of the view that they wouldn't deal with most of the situations we referred to.

You might argue that we're exporting our problems. I don't honestly know, I don't have all the answers. I'm just wondering what would your stance be, given that the Irish Medical Council in its recent submission felt that if, say, we legislate here to bring in abortion even in very limited circumstances, there could be difficulties practically, maybe on moral grounds or ethical grounds, under its guidelines in effecting such changes.

Mr. O'Brien: Well naturally the current ethical guidelines of the Irish Medical Council are a direct reflection of the current state of law and we wouldn't expect that to be otherwise. We would take the view that if the legislators or whatever other process you might adopt were to change that law, that would have a profound effect both on attitudes and medical practice. In other countries where similar changes have been contemplated, we have also seen changes in practice following those things, but fundamentally, the fact that doctors under the current situation do not see that it is possible to provide abortion should not provide an argument for changing the legal framework.

Senator O'Donovan: Well, I don't want to pursue this but one if not two of the experts I listened to in the debate so far clearly made the point that let's say euthanasia was legalised in this country, on moral ethical grounds he - I think there was somebody else said that - wouldn't take part in such action. I think purely changing the law may not change the ethical guidelines. I got the distinct impression from some of those experts from the gynaecologist-obstetrician field that even if the law was changed on their strict ethical guidelines, they would have a different parameter.

Dr. N. O'Leary: If I could just interject there. Ultimately, I suppose it's up to an individual doctor to ..... ultimately a doctor, I suppose, always has the right to opt out of a particular clinic situation should he or she have a moral difficulty with it. I think our view here would be that if the law makes certain changes, then the doctors - all doctors, in fact, to clarify that - are bound by the Medical Council. If an individual acted legally but acted in a way that was outside the parameters of the current guidelines from the Medical Council, there would be a conflict there and certainly the doctor could be brought before the Medical Council. The Medical Council doesn't strike a doctor off, of course, it simply recommends to the courts, the High Court, I think, that this individual be struck off and, ultimately, it would then be for the courts to decide. I think a doctor would certainly fight it in the circumstance where he was pursuing a particular line which was legal but which was not necessarily within the parameters of the Medical Council.

I would reiterate that the council should respond to the current situation, and that's how I would see it, and review its own stance based on current thinking, based on what the law is. I think the onus would be on the Medical Council to review its own situation. I think doctors would ..... if the law changed, I think it would free up those doctors who felt they could pursue a certain line to continue with that and then doctors who had a moral dilemma could have the option of opting out just as is the situation now. I don't know if that answers your question.

Senator O'Donovan: Yes, I think. I accept what you are saying but it's just that there's been so many different opinions offered to us. I am purely a lay person in this argument and we're faced with a mammoth task of trying to resolve the situation. Some people will say that a referendum is the solution, more people say legislation, others say a mixture of both. When I questioned some people from the Medical Council I was seeking guidelines on what it would like to see from an ethical practical point of view on a day to day basis, I found it almost impossible to get answers from them. I also got the impression that even if the law was changed maybe the vast majority of them wouldn't operate the system.

Dr. O'Leary: I'm not sure it would be the vast majority. I think within the Medical Council you get quite a broad range of opinion which is reflected in the medical profession as a whole. I certainly wouldn't see a situation that if the law were changed that there would be inevitably a conflict between the Medical Council and the legislators. It would simply mean that it would move the thing a little forward on and rekindle debate within the Medical Council, but I certainly don't see the vast majority of those within the Medical Council recommending that the status quo be maintained, particularly if changes were to occur in the legislation.

Deputy McManus: Just a couple of brief questions. First, the point is well made that we're not hearing from the women themselves and, in a sense, people have to be agents on behalf of the women. One point that has come up from some service providers is this idea that somehow abortion is very traumatic, that women are damaged by it and that the common complaint is had they known what they were letting themselves in for they would not have done what they did. I noticed that a small number of people come back to you post-abortion and maybe you could explain a little what your experience is in terms of the post-abortion experience, whether that is an adequate description.

You concentrate on minors having access to court. Perhaps you could talk a bit about that. I am not clear, your primary recommendation is the deletion of Article 40.3.3o, but what are you suggesting would be put in its place? I do not mean put in its place in the Constitution, but are you saying that legislation should be introduced or should it just be a matter between a woman and her doctor? I am not clear. What is your primary or ideal proposal?

Mr. O'Brien: I will ask Cherie de Burgh to respond to your first question.

Ms C. de Burgh: The thing about women traumatised by abortion, I would have to say in my experience the first thing is that no woman ever wants to have an abortion or would ever have one if she felt that there was another option. That would certainly be my experience. But given that the average fertile woman has about 35 child bearing years during which she could technically be pregnant every year, many, many women have unplanned pregnancies right across the board, going from approximately 13 to 50 plus.

For each woman her unplanned or unwanted pregnancy is a crisis and I think that counselling services ... my own feeling that the provision of non-directive counselling and support services makes an enormous difference to women who decide to travel for termination or who have crisis pregnancies and are looking at the options or who have even decided themselves that termination might be their best option. The reason I think that is simple. Any crisis that occurs in any of our lives, of any sort, any major decision that we have to make, the time that we can take to look at the options, to look at our feelings, to separate from the initial reaction of how it is going to affect everybody else and come back to how we ourselves feel, to get a sense of choice, even if the choices are not good.

In a crisis pregnancy a woman will have two basic choices, to continue or not, both of which she would feel are rotten choices to have to take, but she is going to have to choose one of them. I think that counselling services can help, non-directive counselling services can help enormously in that. That kind of procedure in decision making reduces enormously the issues that arise afterwards. For instance, very often in post-abortion work, either one-to-one counselling or the support group that I facilitate, women will - it is not that they regret the decision in the sense that when they go through the situation they were in at the time they took the decision they will very often realise the reasons why they took that, in other words they thought and felt that it was the best decision for them and for their immediate people at the time. But, because they had not the opportunity, perhaps, to work through that at the time it comes up for them over and over again.

Very often, in post-abortion work, the woman will finally resolve the situation around her initial crisis pregnancy or, in many cases, look at the whole of her life in which that crisis pregnancy occurred. Does that help answer it?

Mr. O'Brien: I will ask Catherine Forde to respond to the second part.

Ms C. Forde: With regard to access of minors to the courts, I would refer you perhaps to our initial document or initial submission, Facing up to Reality. On page 11 of that there is a discussion as to why minors should have access to the courts. A lot of those difficulties were actually highlighted by the C case, where in fact if the child in the C case had not been suicidal then the court would have refused the health board permission to take her outside the jurisdiction for an abortion and in those circumstances that child would have been required to take that pregnancy to its - to have the child. Parents can be in conflict as to what the child wants and unless the child has actually direct access to the courts then they may be in difficulty in exercising their own rights to travel because of their, what you might call, legal incapacity. Those are the main reasons we would be of the view that minors should have access to the courts.

With regard to the deletion of Article 43.3.3o, I think I would refer you - it is also referred at the back of the Green Paper on Abortion, to the situation which operates in Canada, where there is no legal or constitutional restriction on access to abortion in Canada. They legalised abortion in 1969 and in 1988 the law which permitted abortion was actually struck down as an interference with the right to security of the person and the right to liberty and to freedom of conscience. Since that time that Government has not succeeded in bringing in any legislation which restricts access to abortion, hence abortion has now become an issue between a woman and her doctor.

If you look at the statistics in Canada, you will see that in 1969 there was an increase in the abortion rate when it became legal. Prior to that there had been an abortion rate, a back street abortion rate, but not a legal abortion rate. The abortion rate increased. It then increased again slightly in 1988 and since that time in fact it has been decreasing and the things that affect the abortion rate in Canada are things like recession, increases in the poverty rates and, in particular, cutbacks in Government reproductive health programmes. Those are the things that affect abortion, not the fact that it is free and easily acceptable. Laws do not create abortion, it is the situations that create pregnancy crises that do.

Deputy J. O'Keeffe: I missed the early part of your presentation. I have been reading your opening statement and I have been comparing it with the evidence we had yesterday from Professor Casey and Ms Breda O'Brien, especially your comments about minimising the abortion rate. Is there a big difference between the approach you are suggesting from that point of view in the economic context of your views on adoption, counselling, education and promoting positive images of motherhood? You obviously were not here yesterday, but if you are talking about establishing a quantified target for the reduction of teenage pregnancy and about meaningful action to reduce the causes of abortion rather than simply trying to wish it away, is there common ground with the witnesses we had yesterday on the areas I have mentioned?

Mr. O'Brien: Not having heard their evidence yesterday it is difficult to say, so I would be aware in general terms of things they might be likely to say, but very much the emphasis of our recommendations would be on the provision of very accessible high quality reproductive and sexual health services, supplemented in many ways by things which they recommend which we do not have a problem with. But we are concerned that in the last ten years, as I said in the presentation, we have seen some fairly negative laws swept away, but we have not seen particularly good programmes put in place. We have not seen the establishment of targets or the provision of funds to match those targets, so we would probably say, I think in fact we would say, that we do not take at all seriously the issue of limiting the number of teenage pregnancies or unplanned pregnancies in general, so we would very much put the emphasis on directing resources and programmes at affecting early sexual behaviour, affecting attitudes to the risk of pregnancy and affecting practice in terms of use of contraception or avoidance of first onset of sexual intercourse.

Deputy J. O'Keeffe: Without in any way presuming on the view that will emerge from this committee, we certainly have had an amount of evidence in relation to the lack of resources in dealing with the question of crisis pregnancies and in reducing and minimising, in particular, teenage pregnancies. As I said, without anticipating on the basis that there will very probably be a strong recommendation in that regard from the point of view of making available the necessary resources, it is then a question of resources for what. If we are agreed that it is to achieve something like reducing the incidence of teenage pregnancy, we are agreed. There may then be agreement on resources and there may be agreement on the objective, but then it becomes a question of what is the best means of using those resources to achieve that objective. That is perhaps where we would like to tease it out a bit more.

In relation to two issues, perhaps you might give me a further view. One is in relation to the kind of educational approach that should be adopted. What are your views on the current RSE? What changes should be made in this regard? Second, what are your views in relation to the availability of, and access to, contraception for the young?

Mr. O'Brien: We are very positive supporters of the content of the framework RSE programme, as published by the Department. Our concern would be that it is being regarded as something of an á la carte menu and that it is being cherry-picked in an inappropriate way in some schools, that the latest figures which we have seen indicate that there are still a significant number of schools not adequately providing the RSE programme. So we would be concerned to see intervention on the part of the Department of Education and Science to ensure greater access on the part of school students to the RSE programme.

The second point is we would think that the most important single measure that could be taken is the introduction of a universal free family planning service for all persons in the country, but as a first measure targeted at all persons under the age of 25, which would include an absolute right to choose the point of contact so that they would have the right to choose either their own family's doctor, particularly if they are a GMS cardholder, or another doctor or a right to transport that benefit to a specialist family planning or Well Woman health clinic. We would also like to see that supplemented by the establishment of a substantial network of centres specifically targeted and catering for the needs of young people, designed with the input of young people, open at the times that are appropriate to them and sited in locations that are accessible to them.

Deputy J. O'Keeffe: What would you feel about programmes which would be designed to discourage sexual activity on the part of the young?

Mr. O'Brien: Any programme would have to include appropriate content which would point out the benefits of deferring first sexual experience. There is also ... It is important I should say that there is no evidence anywhere that the provision of a contraceptive service directly affects the level of sexual activity in the sense that if there is no contraceptive service, sexual activity will still take place and if there is a contraceptive service, that level of sexual activity will not be increased. One of the key issues is to create a context in which young people will feel that they have the right to access appropriate personnel who can discuss with them their wishes, their views and their needs, talk to them about whether they are being put under peer pressure to become sexually active before they are ready and make sure that they have the appropriate information; and to include within that information that makes it clear to them that they have the right to defer sexual experience, that there is no prize for being the first in the class to be sexually active, that in fact the notion that everybody is doing it is not correct at all - there is a lot of myth out there - and to include in that empowerment information so that people feel that they have both a right and some benefits to deferring first sexual experience until later, until they are ready.

Deputy J. O'Keeffe: Do I take it then you do not see a necessary dichotomy or difficulty in achieving a balance in terms of a programme that would involve encouraging a delay in sexual activity on the part of the young and at the same time highlighting the availability of contraceptives?

Mr. O'Brien: Certainly not, as long as it is done from the standpoint of empowerment of the young person rather than a censorious or directive approach.

Deputy J. O'Keeffe: Thank you.

Chairman: Just returning to your report, you have recommended to us that the present constitutional provision inserted in 1983 should be repealed in its entirety and that the Constitution should be amended to provide that any right to life in the Constitution only refers to persons who are born, so that would require a referendum, that particular recommendation, isn't that right?

Mr. O'Brien: That is correct, yes.

Chairman: Under our present constitutional arrangements.

Mr. O'Brien: Yes.

Chairman: Do you really see that as a political starter?

Mr. O'Brien: It depends on the extent of leadership that is shown in framing the question. I think that much of the evidence that you have had hitherto - we have read it very carefully - tends, if anything, to support the view that Article 40.3.3° was a mistake and that a good starting point would be to remove it, but clearly there would be many views and any process which is begun which could lead to that outcome would be, I am sure, a very interesting and detailed discussion. This is one reason we have included within our proposals the notion of a preferendum because we think that the history of black and white, yes or no, referendums has proved very unhelpful in the context of this issue, regardless of your viewpoint on abortion but from the point of view of having good public policy and a clear outcome.

Chairman: Your proposal is that any right to life in the Constitution only refers to persons who are born. That is a proposal for a referendum, isn't it? There is no choice on that.

Mr. O'Brien: Any single proposition can be put with other single propositions into a preferendum so that does include choice.

Chairman: You are opening for debate the preferendum option essentially. Is that a fair comment on your submission?

Mr. O'Brien: Yes, although I believe you have also had some evidence from the de Borda Institute, which has put forward the de Borda preferendum principle. We agree with the principles that it talks about but we have suggested removing one or two of the options which your hearings have already shown to be impractical and contrary to the interests of women's health.

Chairman: Yes, your first point is that the absolute ban option should not be recommended by us and I am-----

Mr. O'Brien: That's right.

Chairman: Moving to your next proposal, the committee should recommend that sections 58 and 59 of the 1986 Act should be repealed, that is the present criminal prohibition on abortion.

Mr. O'Brien: That's right.

Chairman: Have you any proposals to put anything in their place?

Mr. O'Brien: I think perhaps while you were out of the room earlier we covered the situation in Canada.

Chairman: No, I was in the room and I heard that.

Mr. O'Brien: We see the situation in Canada as being a good example to work from, and perhaps Catherine would like to say another word.

Ms Forde: I will just say that one of the difficulties that there is with the legislation, the Offences Against the Person Act, is that that continues to cause difficulties in the North of Ireland and there have been reports that state that that is probably in conflict with European conventions so I think that we would be looking for the repeal of that Act in any event.

The other difficulty there is - you will see from our submission - that we define the word "unborn" as a foetus which has arrived at the state of viability and, therefore, if rights are to be conferred, they are not to be conferred until that particular time is arrived at. This is because of the conflict that arises between the woman and her foetus, and I think the as yet unforeseen difficulties in legal terms that we will have, both with Article 43 and also with retaining a general right to life of the unborn, as has been stated by the courts. Therefore, I think our view is that we would want to see the rights being similar to those that are conferred by the Universal Declaration of Human Rights, which only confers rights on those who are born or at least capable of sustaining a proper separate existence themselves.

Chairman: The question I asked was, assume, first of all, you do not want constitutional rights conferred on persons other than persons who are born - that is clear from the earlier submission. The next one is that we should recommend that the Offences Against the Person Act should be repealed, or the relevant sections. My question was, is there any provision you would put in their place?

Ms Forde: I do not see any need to put anything in place and that would be similar to the situation in Canada. I think that the only fallback that would have to be necessary then would be to ensure that any delivery or induced delivery of a foetus, once it has reached viability, would be conducted in a proper fashion. In other words, that would be overcoming the problems with regard to very late abortions after viability. Do you understand what I'm getting at?

Chairman: I don't really, no.

Ms Forde: No, our view is that the unborn should...that the situation with regard to abortion is it's a matter between a woman and her doctor. The foetus will then arrive at a stage when it is viable so if there is any need for criminal sanctions it would be to safeguard and protect any viable foetus, but prior to that there is no need for any criminal legislation. That is the case in Canada. It's not a frightening or intimidating situation. Canada is a very conservative country. Their abortion rate is not excessive and has not increased since the total and absolute decriminalisation of abortion. As I've said before, it is not laws which stop abortion. Article 43 has been for all intents and purposes absolutely useless with regard to reducing the abortion rate in this country.

Chairman: I just wanted to clarify the position then. So you wouldn't have any criminal statutory provision in relation to the protection of unborn life?

Ms Forde: No, there would be no need.

Chairman: Or life before birth. I prefer that expression.

Ms Forde: Yes, life before viability. There would be no need for that.

Chairman: Or life before viability, you say. Excuse me.

Ms Forde: Yes.

Chairman: Medicine is pushing back the time of viability all the time.

Ms Forde: Yes, but I would perhaps point out to you that in Canada where there is no regulation, 88% of women have their terminations before 12 weeks so that when you have an environment where abortion is an ordinary medical procedure the fear and intimidation is taken out of it and people have access at a much earlier stage. As medicine improves this will not be done by surgical methods, it will be done by such things as RU486 and other matters will be dealt with earlier which is much, much more healthy for the woman involved. Any termination at that stage is of less medical risk to the woman than carrying a pregnancy throughout its full period.

Chairman: Various witnesses from the Irish medical profession suggested to us it would be a seismic shift for them to participate in the introduction of terminations on that type of scale in this country.

Ms Forde: I think that if you again get back to a situation where terminations are done very early on by medical procedure as opposed to surgical procedure you are probably doing no different than giving the morning after pill, which can be done by any general medical practitioner. I do not think that there's a general difficulty or problem with the administration of the morning after pill and with the increase and, hopefully, the fact the women would have their terminations much earlier, there would be no difficulty with the administration of such medication as RU486.

Chairman: Yet we didn't hear much evidence of that. Certainly we got very strong submissions in relation to post-coital contraception and the importance of maintaining a clear legal provision there that put the whole question beyond any doubt or question, but I have to say the medical profession in Ireland expressed strong reservations to us about participating in the introduction of abortion here. That was a certain message that was conveyed to us.

Ms Forde: I think that that probably gets back to the aesthetics of abortion and also the later the abortions take place and the manner in which they take place but one would hope that where we take a responsible attitude and women avail of access much earlier that that would overcome-----

Chairman: In England an increasing number of junior doctors refuse to carry out abortions in hospitals.

Ms Forde: I think that's something perhaps Tom will deal with.

Chairman: They exercise their conscientious right under the 1967 Act.

Mr. O'Brien: That's right, Chairman. All doctors have that right. It's also the case that with the development of what's called early medical abortion, the type of thing which is associated with the drug RU486, there is a trend in a number of European countries away from a central role of obstetricians and gynaecologists towards physicians. One of the difficulties which Irish women have is that because the use of such a procedure at less than nine weeks of gestation would require an extended stay in England, most Irish women are not getting access to that type of abortion. Where they are having abortions they're tending to have the more conventional form of abortion which has, although the overall risks are still low, a greater risk associated with it than early medical abortion.

Chairman: Thank you very much for your contribution today. I now ask the representatives of Abortion Reform to take their place before the committee.

Mr. O'Brien: Thank you, Chairman.

Sitting suspended at 9.46 a.m. and resumed at 9.48 a.m.

Chairman: We are now in public session. I would like to welcome the following representatives of Abortion Reform to this meeting of the Joint Committee on the Constitution. The representatives are Ivana Bacik, Ann Marlborough, Damian O Brion and Monica O'Connor. I take it that's the sequence in which you are sitting, is it?

A Witness: No.

Chairman: Then it's Ivana Bacik, Monica O'Connor, Damian O'Brion and Ann Marlborough. We received a presentation from you, which has been circulated to the members. We also received a submission from Lawyers for Choice which, I understand, is a group which is subsumed into your group or affiliated to it. Is that correct?

Ms I. Bacik: That's correct, yes.

Chairman: That also has been circulated to the members and both submissions have been tabled before the Houses. The format of this meeting is that one of you may make a brief statement elaborating on your submission and that will be followed by a question and answer session with the members. I want to draw your attention to the fact that while members of the committee have absolute privilege, that same privilege does not apply to you.

Ms Bacik: We welcome the opportunity to make an opening statement. I can make that on behalf of the group.

Chairman: Yes.

Ms Bacik: I think there's just three issues that we'd like to address in an opening statement to you all and we have copies of a brief opening statement if any committee members would like to see them. So there are three issues we'd like to address, themes which derive from our larger submission to the committee. The first issue is the reality of women's experience which we would describe as a double crisis for Irish women and I think this is the first and foremost point we wish to raise. We want to address the reality of Irish women's experiences. For too long we've had a myth that we do not have abortion in Ireland, we clearly do. We can estimate although we don't know the full extent of Irish abortion figures that over 100,000 women have had abortions since 1983, since the constitutional amendment was passed. There is, therefore, an Irish abortion rate. It runs currently at about 6,000 women per year, yet as the IFPA already said this morning, the voices of those women are never heard in this debate. We all know those women. All of us know women who have had abortions in Ireland but those women are silenced under the present legal regime. They are women who face a double crisis. On top of the crisis pregnancy which has given rise to the need for an abortion for them, they also face the added crisis involved in the difficulties in making the journey to England and in the legal and social stigma still attaching.

We say that the needs of these women offer a strong practical reason for legalising abortion in Ireland but it is also important to remember the broader context and, as we said in our submission, control of fertility is increasingly being seen as a human right which is essential to women's control over their lives, to their existence as autonomous members of society and their ability to participate fully in the economic, political, social and indeed cultural life of their country. Our present law makes us deny Irish women full participation in our society. In this context, we should be particularly concerned about inequality of access to abortion. Irish women who are disadvantaged economically or socially face added significant difficulties in seeking abortion in what is already a crisis situation for them. We should not forget the situations of young women, women in remote and rural areas, women in care, asylum seekers, women with learning disabilities - any legal solution must offer a solution that meets their needs.

Abortion Reform, as you know from our submission, is a broad-based pro-choice organisation. We have a number of support groups, among whom we number Lawyers for Choice. We also number Women's Aid - our colleague, Monica O'Connor is here from Women's Aid. We number also Catholics for Free Choice. We number an abortion support group which assists Irish women in London who seek abortions. The Dublin Abortion Rights Group and the Irish Family Planning Association are also affiliates of ours.

Many of the individuals and groups who have signed up as affiliates to our organisation have long experience of working with women in crisis pregnancy. They know very well the real meaning of this phrase " a double crisis". They know its effect on the lives of real women and they know especially the effect on those women who are facing added disadvantage. The experience of those women's real needs informs our campaign. The question for us and clearly for you is how do we address the needs of those women in our law?

There are two other points. First, we believe the legal change that is necessary must move from a penal regime to a practical solution. We say no more penal law, instead we must move to a practical legislative framework for the regulation of abortion. We favour the decriminalisation of abortion, as we said in our submission, we favour the removal of abortion from the Constitution. This is what is ultimately required, we say, to meet the real needs of Irish women. We do believe that it is possible to find a practical, political solution that will meet the needs of Irish women.

One proposal, as we have said, is clearly not practical. That is the proposal contained in option one of the Green Paper, that of an absolute constitutional ban on abortion. We say that any roll-back of the eighth amendment would seriously endanger the lives of Irish women. It would necessitate a removal of the present situation where the life of a woman is seen as equal to that of the foetus in the Constitution. We have seen from the medical submissions and the evidence of doctors before this committee that there is some disagreement among the medical profession as to when terminations of pregnancy are necessary in order to save pregnant women's lives. But it is also clear, as the Green Paper has said, that the idea of an absolute ban relies on an understanding of a distinction between what has been described as direct and indirect abortion and that this understanding is itself controversial and it would be unsafe to rely upon it in any legal framework. We believe that it not only would be unsafe, it would compromise current medical practice and endanger the lives of Irish women.

We believe, therefore, that a practical approach must recognise the need for legalisation of abortion. and we believe that this outcome itself is more important than the process by which it is achieved. However, as our third point we do think we can address you on practical processes for legal change whereby a legalisation of abortion could be achieved. We say there are essentially two processes by which practical legislative compromise would be achieved. First, it could be done without the need for a constitutional amendment. In 1992, legislation was promised in order to implement the X case judgment upon the defeat of the 12th amendment to the Constitution.

Such legislation could be introduced permitting doctors to carry out abortions where the continuation of a pregnancy posed a real and substantial risk to the life of a pregnant woman, the test proposed by the Supreme Court in the X case. Such legislation would safeguard current medical practice, prevent the occurrence of future X and C cases and be in line with the existing constitutional position. In our policy document, which you should also have received a copy of, we have set out the issues which would need to be covered in any such legislation and indeed the Constitutional Review Group has also considered the matters that would have to be dealt with in such legislation, without the need for a constitutional amendment.

If, however, the committee were to decide that the Constitution should be amended, and indeed ultimately we believe it should be, then a practical political solution again presents itself. We believe a preferendum type vote could be held in order to prevent polarisation of the issue and in order to present the people with a broader range of choices. We believe that a number of options for reform could be put to the people, perhaps mirroring some of the options presented in the Green Paper. In such a preferendum, our position would be to call for the repeal and deletion of Article 43.3 and its replacement by a legislative regulatory framework for abortion.

The advantage of this type of vote would be that it would enable a better reflection of the broad spectrum of views which currently exists on the issue of abortion among the Irish people. This type of vote would be better able to engender a consensus as to some sort of compromise on an issue that has always been seen as politically divisive. The option ultimately chosen in a preferendum would represent the approach acceptable to most people, a compromise that all could live with and, we say, a move from coercion to compassion in the law.

We have spoken, therefore, of the double crisis facing Irish women, the reality of their experiences of abortion at present, of the need to move from a penal regime to a practical solution and of the processes whereby this could be achieved, and we hope our submission is of some help to the committee.

Deputy J. O'Keeffe Thank you for coming along and presenting your views with such clarity. We have had the opportunity of reading your earlier submission. Basically, as I see it, you want to remove the issue from the Constitution and you want legislation regulating abortion in Ireland. Can you give us any idea as to whether you think there is much support in the country for such an approach? Do you think from a practical point of view there is any significant view in Ireland behind the approach you are now advocating?

Ms Bacik: Yes we believe there is and we have made reference in our submission to an opinion poll conducted in 1997 which showed that, I think, 77% of those polled believed in some form of limited abortion. Again, as I have said, we believe there is a broad spectrum of views and I think that is the right position but when people are confronted with a real situation, as they were in 1992 with the X case and again more recently with the C case, I think that the views of people tend to become less fixed and less absolute. What we are proposing is a move from the polarised positions often taken in this debate and a move towards trying to find a solution that is acceptable to most people.

Deputy J. O'Keeffe: Now that you have raised the issue of that poll, perhaps we might just explore the findings. You mentioned the 77%, but in fact in that poll 35% were supportive of an abortion where a woman's life was at risk, but, indeed there was a residual 18% who would not even consider that as being the case for permitting an abortion in Ireland, who would not accept an abortion under any circumstances. Does that not indicate a very hard core view against abortion under any circumstances, even when the mother's life is at risk?

Ms Bacik: Obviously we do not want to rely too heavily on any poll because a poll is questions in the abstract. I think the outpouring of public sympathy for the girl at the centre of the X case and for her family demonstrated that when confronted with a real situation most people do move somewhat from a very fixed position.

Deputy J. O'Keeffe: Do you understand the relevance of the feelings of the people because if you are talking about any constitutional change, obviously the first practical issue one has to consider is whether any such constitutional change will be approved by the people?

Ms Bacik: Yes, and I think that is one of the reasons we have put forward the idea of a preferendum which my colleague, Damian, can expand on.

Mr. D. O'Broin: Given that there is such a wide divergence of opinion on abortion, and clearly it is not a black and white issue, there are many shades of opinion on it, a preferendum is one mechanism which will allow that opinion to be expressed by the people and give voice to those opinions and those differences and, hopefully, reach a workable and practical solution which the greatest number of people can actually live with as a political solution to the issue of abortion in Ireland.

Deputy J. O'Keeffe: Moving on to the question of legislation, do you think that there should be any criminal sanction in relation to abortion at any time?

Ms Bacik: Well, we have called for the repeal of sections 58 and 59 of the Offences Against the Person Act because we believe - I think there would be wide support for this view - that it's inappropriate that women in crisis pregnancies should be faced with criminal sanction. Indeed, the law hasn't been used for a very lengthy period of time to criminalise women who have had abortions. We do believe, however, that a legislative framework should be introduced regulating the process whereby abortion is performed in Ireland. Clearly there would have to be some form of sanction for those medical practitioners who didn't abide by the regulations set down, for those who were breaching the law, but other than that, no, we don't believe in criminal sanctions. We don't believe they're appropriate for women in crisis.

Deputy J. O'Keeffe: Do I take it that you would see no criminal sanction against an expectant mother for any abortion at any time during the term or for any reason, that she would be exempt from any criminal sanction, but that you would envisage some form of regulatory framework for the medical profession? Could you just briefly indicate what you think such a regulatory framework might be?

Ms Bacik: Well, we'd be happy to provide the committee with the heads of the Bill, if required. We welcome that opportunity to do so. I think that, again as I've said, the Constitution Review Group and we in our own submission have made clear the issues that would have to be addressed in a regulatory framework, and they would include matters such as the definition of abortion, the provision for opt out by medical practitioners who wish it. I think that's been raised previously before your committee. We'd also have to deal with issues about term: when within pregnancy, up to what stage, could abortions be performed and so on. So, there are a range of issues which would have to be defined and regulated through legislation.

Deputy J. O'Keeffe: Finally, on that point, what would your view be on term?

Ms Bacik: Well, none of us here is doctors. I think we would leave that to expert medical opinion to decide upon. I think we can look at examples in other countries to see at what point.....there's generally a consensus in other countries as to what term within pregnancy abortions can be performed until.

Deputy McManus: Thank you very much indeed for coming here. I think you have certainly clarified the points as regards the position and, again, there is this difficulty the committee has that we can't access the women directly and that it is important that the points that I think some of them might raise are raised here as best we can.

I just wanted to focus for a minute on this idea of a preferendum. I have a difficulty about getting my head around this. The argument as I understand it is that you're saying this matter should not be in the Constitution. If that is the case, presumably the idea of a preferendum would open up options that would have this issue dealt with within the Constitution, even though that is not the position that you would hold as being desirable or helpful. Is that right?

Second, in regard to a preferendum, my understanding is that a preferendum is simply an opinion poll. It doesn't have a statutory basis or constitutional basis that would render a decision made by way of preferendum to be binding.

Mr. O'Broin: Well, just on the first point, obviously we would advocate, in a preferendum situation, if there were a number of options placed before the people, the removal of Article 40.3.3° and its replacement by legislation providing a regulatory framework for abortion. Other people wouldn't hold that view and would obviously advocate other positions and other people believe that abortion should remain in the Constitution. What a preferendum will do, it will allow people to advocate their own particular view and, hopefully, allow Irish people to come to some consensus or compromise on the issue. We may not win. We don't claim that that will be the outcome.

On the second point, I don't think there's anything to preclude a preferendum taking place in the Constitution and I'm not a constitutional expert, but I do know that Gerard Hogan has suggested that the issue be kept under review in the Constitutional Review Group. I believe the de Borda Institute has suggested that maybe a constitutional amendment should be introduced to enable a preferendum specifically as a means of resolving disputes of this nature.

Deputy McManus: So you're not suggesting a preferendum on a preferendum?

Mr. O'Broin: That may not be possible.

Deputy McManus: Okay, so what you're saying is that, if there were a preferendum, if the choice was at the end of the day that there would be something included in the Constitution, there would then have to be a referendum, unless there was a constitutional referendum in order to allow for a preferendum.

Mr. O'Broin: Well, possibly, but again I understand from the de Borda Institute submission that they feel that a preferendum could be used under the current constitutional framework. Now, I don't know the detail of the argument there, but I think the safest option would be to implement, to facilitate a preferendum by changing the Constitution and then allowing-----

Deputy McManus: Are you absolutely certain that if there was a preferendum choice made which subsequently went to a referendum, people would decide the same way?

Mr. O'Broin: Well, I understand the experience has been that it tends to be that case but, again, nothing can be certain.

Deputy McManus: Okay. Thanks very much.

Senator O'Donovan: Just two brief questions. One, the previous group, the Irish Family Planning Association, mentioned, I think, that it used the term with regard to abortion that it would be sort of okay up to viability, which is I understand 22, 23 weeks approximately. It's coming down. I think in Great Britain - there's been a lot of criticism of the English legislation on abortion - the limit, and I stand to be corrected, is about 12 weeks, maybe 14. The big worry I would have in that, if we were to go down that road, whether we like it, I feel Ireland is still very conservative and I would put the question to you, surely is it not essential, seeing that we would be making, if that was the way the people decided, a seismic shift, so to speak, surely there would be initially very stringent restrictions on the timescale for abortion. Again, I'm a lay person. I understand that, you know, it's known in a matter of four or five weeks whether one is pregnant and certainly within possibly two months. Surely there would be a very stringent restriction on this issue, if that were to be the case. If you want to answer that first, I've just one other question.

Ms Bacik: Well, I think that this sort of discussion shows clearly the need for legislation, that this isn't the sort of issue that can be dealt with through the Constitution, that the idea of term and the idea of when viability comes about in pregnancy.....as you say there is some change in medical view on that. I think we can gain from experience of other jurisdictions and some jurisdictions have different time limits depending on the reason for the abortion. That might be a model we could look at.

I think we might want to just reconsider the notion of seismic shift given the numbers of Irish women who have had abortions and given the reality of their experiences which some of my colleagues, particularly Monica here, would have had personal experience of women who've been through the reality of abortion. Those women number many thousands. I think that there isn't the shift, there wouldn't be the need for the seismic shift that you describe. I think that there is a view that most people have that abortion is in Ireland, it is an Irish phenomenon. It happens abroad, it happens 120 miles away, but it is an Irish problem that we have at the present time that we have to address. I don't think it would require a seismic shift to change the law to recognise that reality.

Chairman: It would require the seismic shift of a referendum, though, wouldn't it?

Ms Bacik: We put forward two alternative processes, one which wouldn't require a referendum, which would require simply legislation to implement the X case test.

Senator O'Donovan: Just one final question. We heard from the three masters of the biggest hospitals in Dublin - maternity hospitals - and from many other experts in that field - I'm mainly talking about gynaecologists, obstetricians - and also from the Irish Medical Council. The view I got from the questions answered by this committee was that they were extremely conservative and wished to, I think, align closely to the existing medical practices that take place in Ireland. If the change that you suggest were to take place, I get the distinct impression - again, that's just the vibes I'm getting - that the vast majority of the Irish Medical Council and the people we questioned would not operate that type of system and that one way or another, whether we like it or not - I am not saying we do not have a problem and I am not denying that 6,000 women go abroad each year - if the law or the Constitution were to change, you would still have a major problem with people going abroad. I get the distinct impression - and I may be wrong but I am putting the question to you - that currently the Irish Medical Council's ethical code and that of the majority of senior gynaecologists and obstetricians would not result in the operation of any type of liberal system.

Ms M. O'Connor: One thing I would say is that doctors have a duty of care and I would challenge the idea that it is ethical to force women to carry through pregnancies as a result of rape, for example. I have worked with women for many years who have, in fact, had later abortions than they would have wanted because of the inability to travel, the lack of resources or the control by violent partners. It is assumed that women can travel to have abortions. Women can't always travel and are often forced to carry through pregnancies they don't want.

Many women are in situations where they have no control over sexual practice and no control over whether they are pregnant or can use contraception in the first place. I would say it is unacceptable for the medical profession to claim ethics and not cover duty of care to women who are in situations of what is, in fact, compulsory motherhood. There is a lot discussed about the trauma of abortion but the trauma of women having to carry through with something they do not want is rarely discussed. Thousands of Irish women find themselves in that situation every week. We know that one in four women in Ireland have experienced abuse and violence in intimate relationships, including marriage.

A lot of the time we are ignoring the very reality that, in fact, doctors have a duty of care to all women in this country. I understand that there will be an opt-out for doctors and I would accept that but I don't accept that this is not an issue doctors should be challenged on. There needs to be some leadership among medics and politicians about hiding behind ethical guidelines as if they cover the reality of the situations of women who travel every day or the women I work with who do not have the capacity to travel. I would just add that increasingly, vast numbers of women in this country are marginalised economically, for example, asylum seekers who will not be able to leave this country, who are going to be in situation where we do not have any facility at all, regardless of the context in which they become pregnant. I want to leave that as a challenge to the medical profession.

Senator O'Donovan: The reason I mention that is that according to their fifth edition in 1998, two years' ago - and I raised this question with the Medical Council which was slow, I suppose, in giving us guidelines - are you saying so that the ethical guidelines of the Irish Medical Council, which is an umbrella organisation of all medical practitioners in the State, are not in touch with reality?

Ms O'Connor: Yes, I am challenging that there are a number of women to whom they are failing their duty of care.

Deputy J. O'Keeffe: To touch on the specific proposals you make ... you made one from a legislative point of view and one from a constitutional point of view. I dealt with the difficulties of any constitutional amendment earlier. As I see it, your proposal from the legislative point of view is to actually implement the Supreme Court decision in the X case and permit doctors to carry out abortions where the continuation of a pregnancy poses a real and substantial risk to the life of a pregnant woman. Apart from the issue of suicide, which is difficult territory but which is not the main focus of my question, would it make any difference whatsoever if such legislation were introduced? We have had evidence from the medical profession that where there is a real and substantial risk to the life of the pregnant woman, they use whatever procedures are necessary, including termination, to save the woman's life. What would be the practical effect of introducing such legislation? I do see the point at a theoretical level that public policy should make law covering what is actually happening. Would such legislation affect current medical practice one iota, would it change anything?

Ms A. Marlborough: I think it would surely put the practice of doctors on firmer footing. Having read the transcripts, several of the doctors expressed concerns about this direct-indirect distinction and whether they are providing medical treatment or abortion. We need clarity in the law in that area. How practical a difference that might make I am not sure but some of the doctors did say they would not feel fully secure that they had proper adequate legal cover for carrying out certain terminations unless law was introduced providing for termination in the case of a risk to life. I think for legal certainty and protection for doctors that would be necessary.

One of the main reasons I know is problematic is that this is uncertain. It is a very basic legal requirement that there must be certainty, that you must know what the law is and what you can and cannot do. At the moment, in relation to risk to the life of the mother, the X case interpretation says there is an entitlement to an abortion in those circumstances but the circumstances are not spelt out and, clearly, regulation is needed there at the very minimum. I would say that having such legislation would make a practical difference for doctors and that it would also make a symbolic difference, of course, on a public policy level.

Deputy J. O'Keeffe: I take the point about the symbolic resonance but at a practical level, at the end of the day, the decision as to whether there is a real and substantial risk to the life of the mother will be the decision of the attending gynaecologist or medical personnel. How would one change that? If there were such legislation, would we not have to provide that, at the end of the day, it would be a matter for medical decision? Would we be going any further than the present situation of it being accepted that if such medical decision is made, it is never questioned by the law and, even in relation to the direct and indirect effects, are we then trying to cover the thought processes of the medical specialists, some of whom even have difficulty with saying that what they are doing is an abortion? Some say it is a termination, some say it is killing the baby because it is necessary, some make it quite clear that they would not do it, others that it is a medical procedure to save the life of the mother which, in effect, brings us back to where we started and, therefore, as far as they are concerned, is an indirect effect of that medical treatment. What will be the benefit of actually introducing legislation or a regulation to cover a situation which is already working?

Ms A. Marlborough: I would consider it a bit dishonest and dishonourable to have a situation which is running and seems to be working perfectly but, if a problem occurs, it goes to court. We already saw that in the X and C cases. The threat to life in those cases happened to be from suicide but if there were a different type of a threat to the mother's life and there was a divergence of medical opinion, there would have to be resort to court because there are no legal guidelines for doctors. From the transcripts, doctors did attest that in cases of uncertainty, they would proceed with the termination and then deal with the legal consequences afterwards. They should not have to find themselves in the position of wondering whether they might be breaking the law in a particular case by intervening where there is a threat to the life of the mother.

Deputy McManus: Can I just ask, to follow on from that, in view of what Monica said - you are talking about particular women you are dealing with - do you think that the idea of deciding, if we were to decide, that legislation was not an option, leaving it to the courts is a serious option for the women with whom you are dealing?

Ms O'Connor: No, very simply. I would come back to what Ann said that there is a political responsibility to take a decision about legalising abortion which should not be left to individuals who are already in a state of crisis. I think this is a totally unacceptable way to leave it. In a way it is an avoidance of reality. When you asked me about doctors and duty of care, they are certainly failing the women who are leaving the country. They are also failing the women if, in a sense, they are expecting individuals who are already in crisis - which is how we have dealt with it up to now - to be the test case, to be the woman who is at the centre of a controversy as in the X or C case. It is totally unacceptable to leave it to another case each time. This is at a time of extreme trauma already for both of these young girls and their parents. I do not think this is an option. It is not enough to say that it is going on and let us leave it. That is an Irish solution, as usual, until there is another tragedy for some woman to have to deal with that directly in the courts.

Deputy J. O'Keeffe: One of the guidelines is that refusal by the doctor to treat a woman with a serious illness because she is pregnant would be grounds for complaint and could be considered to be professional misconduct. The guidelines themselves make it clear that there is an obligation on the doctor, whatever his or her conscientious position is, to give whatever treatment is necessary for the woman if there is a real and substantial risk to her life. Would you not accept that?

Ms Marlborough: It depends on how one would define treatment. One doctor might say that includes termination, it is indirect, it is treating her illness, but some of the other doctors might not agree that abortion comes within the definition of treatment. I think it requires legislative clarification. The ethical guidelines anyway are only a professional body of rules. They are not drawn up in relation to the public. They are not drawn up by elected representatives. It is the professional code for a body of practitioners and they can draw up to an extent what suits the operation of their profession in Ireland today. Legislation needs to have wider concerns.

Deputy Daly: I would like to thank the delegation for the information and clarification they have provided. They put a lot of emphasis on the double crisis, that is the situation where women have to travel to the United Kingdom. If the reforms you are suggesting were put in place, what effect would that have on the numbers travelling abroad and how much of that is related to the social stigma rather than to availability? On the reform organisations, how representative are you? Have you had discussions with some of the other organisations, the vast majority of whom have views totally opposed to yours? Have you had any discussions or dialogue with them to find some formula to advance this issue?

Ms Bacik: I will leave it to Ms O'Connor to answer the first part of your question and I will deal with the second part of the question in relation to the organisations. We gave a large number of organisations affiliated to us. I think you received a list of those. We would all have experience of working with organisations which do not necessarily reflect our views. We have participated in debates and discussions with groups from what would be seen as the other side of the political spectrum in terms of their stance on abortion. What we are trying to do is prevent the debate from becoming as polarised as it was certainly in 1983. We are trying to approach what might be seen as some sort of consensus. Obviously we will never achieve representation of everybody's views but we are trying to find a solution which will best achieve a compromise that everyone can live with. That is the aim of this group and that is why we formed in the way we are as a coalition or umbrella of other groups.

Ms O'Connor: I agree with you that the social stigma must be removed and that legalising and providing for facilities here is not enough. I think there is a social stigma and it is our responsibility to ensure women do not experience that on top of all the other crises they are facing.

In relation to women's organisations and service providers, Women's Aid is 25 years old today and has for 25 years provided, with much difficulty, for thousands and thousands of women who have experienced abuse. However, it is extremely difficult for service providers to both speak out on this issue and to reflect the reality for those women of crisis pregnancy in situations of abuse. We would work with any organisation that has the interests of women and children at heart, and we are very clear about that. The reality is that it has been quite a difficult area in which to work. We fully support the abortion reform campaign and have always supported a pro-choice position, particularly the concerns of the women we represent. I am very sorry that women don't feel they can speak for themselves. What Liz has said is so true. We have had survivors speak out on so many other issues in this country and it is still a deafening silence for the thousands and thousands of women who have had abortion. Maybe that in itself highlights the existing social stigma that was talked about, that it's left to women's organisations like ourselves to represent the women who we know and work with everyday who have had abortions. I think it is very sad that it is still not possible for women to actually say they had an abortion and give the reasons, and that it is representatives instead who are trying to represent those women.

Deputy M. McGennis: I welcome the group. You are quite clear about your position. I have listened to various speakers on the radio say this is what we would actually like to see happen, but we are realistic, and if we can achieve ... particularly you mentioned the legislation implementing the X case test. If you leave aside what we hope will continue to be current medical practices ... what is happening in our hospitals which some define as non-abortion and being a medical procedure and other medical practitioners who came before us stated quite clearly that they were terminations or abortions. Would you see ... if we were to bring forward legislation, would you see it just to recognise the substantial risk to life of a pregnant woman as being suicide ... the suicide test ... or would you see it recognising a lot of other instances, which we would bring forward by way of legislation? Also, would you support the concept of a referendum, similar to the divorce referendum, by which we would bring forward legislation to the people showing them precisely what we intended to enact if the referendum were passed?

Ms Bacik: Certainly we would see suicide as having to be encompassed in the risk to the life of the pregnant woman, because that was accepted in both the X and C cases. Indeed, the people voted against a proposed amendment in 1992 that would have restricted risk to life of the woman and would have ruled out suicide as a possible risk. So any legislation implementing the X case would, of necessity, have to include regulation of the risk of suicide. I know the committee has heard evidence as to risk of suicide and the fact that suicide risk in pregnant women used to be a lot higher than it was perhaps before the availability of legal abortion in other jurisdictions. Therefore, the suicide risk would have to be encompassed in legislation.

Deputy M. McGennis: Would there be other issues or other risks that you would actually define in legislation? You mentioned bringing forward heads of a Bill.

Ms Bacik: We would welcome the opportunity to offer you heads of a Bill. We have given some detailed consideration to what would have to be in a Bill. I don't think any Bill could spell out situations or enumerate the list of medical conditions which would give rise to risk. Indeed from the evidence that the committee has heard, there seems to be a range of different conditions which may, in certain circumstances, give rise to a need for termination. The second question about putting legislation to the people similar to the divorce referendum, again this is something we have canvassed in our submission. This is something we would support. We would support any outcome that involved legislation which legalised abortion in some form. We do not see the process as being quite as important. Clearly the process is important politically and it is for this committee obviously to decide on the process. We think the example of the divorce referendum is a good example because people were very clear about what they were voting on. The committee might like to consider that issue.

Chairman: Can I come back to the 1993 referendum. You said people rejected certain matters but, of course, a large proportion of the people rejected even the right to travel overseas and the right to provide information. Clearly they were part of the "No" vote on the substantive question in 1992. Is that correct?

Ms Bacik: Well, I think it's a particular euphemism to describe it as a substantive issue and we've tried to get away from that.

Chairman: It was called a substantive question because there were three issues put before the people, or submitted to the people, in that referendum. It's not a euphemism. The question of travel and information, at the time, to explain the matter to the people, was described as a substantive question. I agree with you, it's not perhaps helpful to go on discussing it in that context but that, I presume, was the reason at the time.

Ms Bacik: Yes. I think that the fact that the travel and information referendums were accepted shows what I described earlier as the outpouring of support for the very tragic family at the centre of the X case. I think there was support for their situation and many people felt themselves shift, I think, on what might have been a more absolutist position previously, and certainly supported the right to travel and for information as a result of the X case.

Certainly, on the twelfth amendment, the defeated amendment, there was more confusion - we can say that. There were groups from very different viewpoints who would have campaigned against it but the fact is that it was defeated so the X case test remains the present law and the present constitutional position. What we're proposing as a very minimum solution that we believe would address at least the needs of some Irish women would be legislation to implement the X case test and to provide for the framework, as Anne said, a clear framework within which doctors could operate if the life of a pregnant woman was at risk.

Chairman: Yes, but the reason I put the question about the twelfth amendment in 1992 was that if you take the preferendum approach, which you've advocated, you'd have to assume that proposal would've been carried, or perhaps a more restrictive proposal, if you took the preferendum approach because, on the evidence of opinion poll surveys at the time, a number of people voted against the twelfth amendment because of objections to the amendment which were raised by prominent ecclesiastics. I remember canvassing as an ordinary canvasser at the time in the contemporaneous general election and a very great number of persons said to me they would vote against this proposal because it was an irreligious, ungodly proposal because it raised the question of abortion directly in the Constitution. Naturally, there were those like yourself, I think, who campaigned against it for a different reason to do with the precise criterion on which.... or the indication on which medical procedures could take place, the life as distinct from the health and so on.

The point I'm making is that if the preferendum route had been taken in 1992, you might've come out with a result that was rejected by the people. That appears to have been the middle ground in 1992, because you're saying people have to accommodate. If there had been an accommodation in 1992, there would've been a substantial consensus for the proposal that was put to the people.

Mr. O'Brion: I think what happened in 1992, where both people who were opposed to the introduction of abortion and those who favoured the introduction of some form of abortion opposed the amendment, shows the problem of a "yes" or "no" referendum. I think, in actual fact, the preferendum may have solved that problem to some extent in that it would've allowed people a range of options which were more reflective of their own positions on abortion. It may be the case that if that approach had been taken in 1992, a more restrictive form of words would've been inserted into the Constitution, but, equally, it may have been the case that a more liberal, or a more pro-choice view may have won.

Chairman: Not on the opinion polling at the time. Not on the data that we knew at the time about the matter.

Mr. O'Brion: I think, without an actual preferendum, it's hard to know exactly what the result would be but I think the process would allow for more choice in terms of voters expressing their opinions on the issue.

Chairman: The de Borda Institute were talking to us last week about it and one of the difficult matters in the preferendum is that you have to assign a value to each preference the voter exercises. So first of all, you have to catalogue a range of options and then you have to assign a value to the preference vote cast for each option. One of the difficulties with this issue is that for certain people in the philosophical dispute, there is only one option, or at most two, shall we say. Therefore, their votes automatically are worth less.

Mr. O'Brion: Well, there are a number of models of a preferendum and I think the constitutional review group has looked at using the single transferable vote system and Gerard Hogan has put forward that as an option. I think it is important to look at it as a possible route to reach a political solution here. I'm not an expert on the area but I think it does hold out the possibility of, first of all, a less polarised debate, and second of all, a workable solution.

Chairman: The suggestion of a transferable vote approach would not have been supported by de Borda. It's a different idea. Clearly, if we're to have a transferable vote exercise on this particular operation, you would start off with a very substantial number of first preferences in the unequivocal support for the first option in the Green Paper. You would start off with 30% to 40% of the electorate, I would estimate, as a minimum in that position, waiting to collect transfers from options down the line. Therefore, I'm just suggesting to you that the preferendum might not lead to the outcome which you seem to think it will lead to. That's really the point I'm making to you.

Mr. O'Brion: I don't know the answer. I think that's something that needs to be teased out further.

Chairman: I appreciate all the de Borda objections to majority voting, but the problem is for the people. Often the clarity of a decision making process is important as well. It's very hard to have a public debate when you've a complicated procedure built in to adjudicate on the question. That's just the point I wanted to leave you with on that.

Ms Bacik: Of course, we would say it's up to the committee, up to the legislature, indeed, to make the determination as to what options are put to the people. We've suggested that some of the options to be put in a preferendum might reflect the Green Paper options but it might, perhaps, not include option one, the absolutist position, and include, rather, a range of more moderate positions to be put to the people, which would alleviate the problem you describe.

Chairman: That begs the whole question....you're prejudging the whole philosophical question once you go down that route.

Ms. Bacik: We are just saying that there are various options.

Ms O'Connor: May I quickly make a point as well to go back to what you said? I think there's a real failure of education around the issue as well. You go back to 1992 and talk about the right to travel. Should the right to travel ever have been put before the population, that they could see that they had the right to stop women leaving the country, and were they going to screen women and have detention centres for forced pregnancy and motherhood? The consequences of putting things before the people, before that happens I think you have to thread through all of the fine lines of that and make people face the consequences of decisions they make regarding referenda.

I contend that the people were not educated about what would happen if they voted to deny the right to travel. What were the consequences and how could that be implemented and was that a reasonable option or choice? It is up to the committee to make very strong decisions. If the preferendum idea is to be thought through, I think those consequences or possibilities need to be taken into account. I would agree with you, it needs to be really teased out. The big issue is that there has to be some leadership and courage about the issue as well. There has to be. It is not good enough at this stage for all of us working with women everyday, facing the reality of this issue------ that some lobby groups dominate both the form of education around the issue - that's happening - and have the resources to do that and have the resources to dominate the debate and put forward ideas like the right to stop women travelling, as if that's a realistic option. I would just challenge that. There is still, I think, a failure to engage in the real issue at any level.

Chairman: One of the difficulties in 1992 - I wasn't a legislator then, I was a citizen....I'm a citizen still but then I was a private citizen - was that the travel ban idea was actually accepted by the Supreme Court in the X case. The X case, as well as addressing the question of what procedures were possible in Ireland, decided that in any context outside those, there was no right of travel. That was a difficulty which I presume the Government had to face.

Coming back to a technical question I wanted to ask Ivana Bacik, and that relates to the Offences Against the Person, Act, the ban in the Offences Against the Person Act applies to medical practitioners. To what extent does it apply to the woman?

Ms Bacik: Well, section 58 clearly penalises the woman, section 59 penalises anyone who assists her, as I understand it. Neither section has been implemented here for a long time.

Chairman: Well, just taking section 58, does it apply though to a service lawfully carried out in the United Kingdom?

Ms Bacik: No, clearly it doesn't have extra-territorial jurisdiction. The sections have been reviewed.

Chairman: They have been cut down by the adaptation of enactments.

Ms Bacik: Yes.

Chairman: So it is a ban within the State.

Ms Bacik: It is a ban within the State but it has not been utilised. Again, one might ask the question that because the facility of abortion in England has been available, albeit with great difficulty, for women from here there has not been a need to operate these whole sections. We say they should be repealed and I do not see that as being a controversial view to put forward, given that they have not been implemented and given that there would be a widespread view that pregnant women - women in crisis pregnancies - should not be criminalised by the law.

Chairman: May I just distinguish between sections 58 and 59 for the purposes of that argument for the moment? Would you make the case that it is possible to repeal section 58 within the present constitutional arrangement?

Ms Bacik: Yes, I would, because section 58, in the way it has been interpreted by the courts both in England in the Bourne judgment in 1939 and in Northern Ireland much more recently, demonstrates that the test is rather different to the test used by the Supreme Court in the X case.

Chairman: Section 58 applies to the person who assists, did you say?

Ms Bacik: Section 58 applies to the woman.

Chairman: Yes. That is what I thought.

Ms Bacik: Section 59 applies to the person who assists. It is section 59 that has been the object of the interpretations.

Chairman: That is right, but taking section 58 - leave section 59 for a second - do you say that it is possible to repeal section 58 within the present constitutional dispensation?

Ms Bacik: Yes, I say it is possible to repeal both within the present constitutional regime. I should have made that clear. The Constitution takes a very different approach.

Chairman: But in the case of section 59, does not a different consideration apply? I am trying to draw a distinction between them for the purpose of this argument. In the case of section 59, the ban on a person assisting has to be there as long as you have the constitutional presumption that both lives must be defended and vindicated as far as is practicable. The State could not, with constitutional propriety, dispense the operation of the criminal law entirely in that circumstance.

Ms Bacik: That would be arguable. Clearly they are two very different regimes, the constitutional regime and the criminal regime. There have been suggestions, indeed in the students' case on information, that there might be a possibility of creating a crime through the Constititution but that is a very contentious proposition and it has never been supported by authority. I would see the two regimes as being very different. You are saying the Constitution puts it up to the State to provide criminal sanctions for abortion. I do not think that argument is tenable because the criminal law, as it presently stands, is actually less restrictive than the constitutional prohibition on abortion, such as it is. The Constitution permits abortion, since the X case, where there is a real and substantial risk to the life of the woman. The Bourne judgment and the Northern Ireland cases show us that there is a more flexible interpretation given to risk - physical and mental wreck being the wording used.

Chairman: The Bourne judgment is not law here.

Ms Bacik: But it has been applied, not only in Northern Ireland but in many other jurisdictions.

Chairman: But it is not law here in this State.

Ms Bacik: No, but it would be persuasive authority, given that we do not have an interpretation here.

Chairman: It would have to be considered in the context of the constitutional provisions. And at the time of the 1982-3 debate, one of the arguments used was that the loophole in the Bourne case should be closed off. That was one of the reasons the question was submitted to the people in 1983.

Ms Bacik: But we have never had a judicial decision on it. In which case we would have to look to other jurisdictions. We can look at the cases in Northern Ireland. We review that in the text book and the Green Paper has reviewed them also. They clearly are following Bourne.

Chairman: Without prejudging the merits and demerits of their arguments on the general issue, do the pro life supporters not have a point when they say that the courts are being used to circumvent the expressed will of the people in a referendum?

Ms Bacik: That is something I wanted to come back to, following from what Monica said about consequences of the vote. In 1983, the wording put to the people and approved by the pro life campaign, and indeed initiated by them at the time, was a wording that had utterly predictable consequences: that where two rights are set up in conflict, as they were with the woman's right to life and the right to life of the unborn, there would inevitably be a situation where somebody - and it would have to be a constitutional court - would be called upon to intervene and to decide which right took precedence. It was also predictable - and indeed predicted by those who opposed the 1983 amendment - that it could be used in future to block women from travelling and those who were pro the amendment at the time said they would not use it to pursue individuals through the courts and then subsequently turned around and pursued Well Woman Centre, Open Door Counselling and the students' unions.

We have to be clear that the consequences of the 1983 amendment were predictable and were predicted in 1983. Perhaps there is an argument that people were not fully informed about those consequences but that is a fault of those who were pushing the amendment - that they did not see through what was the likely outcome of that referendum. There is an argument now being put forward that the will of the people is not expressed by the Supreme Court judgment. It was predicted in 1983 that a situation would arise in which a court would be called upon to make that judgment.

Chairman: The principle of law in the X case is that a real and substantial threat to the life of the mother would be a ground where the mother's life must prevail. That is clearly left open by the 1983 amendment.

Ms Bacik: Yes.

Chairman: The point at issue in the objections we have received is that the actual grounds, on the facts of the X case, did not match the legal principle found by the Supreme Court.

Ms Marlborough: That is very much a matter of debate and a matter of evidence in the particular case. I certainly think, on the point of principle, the decision in the X case is not objectionable. It is a very minimal... to reflect what the 1983 amendment expressed and I certainly do not think that any arguments are tenable that it is in any way counter-majoritarian. It is not like all of our unspecified, unenumerated rights that were interpreted by the Supreme Court and created over the years. Rather, that was specifically interpreted. The possible consequences could have been predicted, as Ivana said, and the judges interpreted it. I really have no difficulty with it, in that I think people got what they voted for.

To be democratic about it, we should probably go ahead and have new legislation because, on a technical point, the Offences Against the Person Act is very old. It is not a product of this State or of this Legislature. I do not see any technical difficulties at all with repealing it. Probably the solution is new legislation.

Chairman: Thank you very much for your assistance. I suspend the meeting for five minutes until the representatives of the Irish Congress of Trade Unions take their place before the committee.

Sitting suspended at 10.47 a.m. and resumed at 10.50 a.m.

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