By Susan Gately - 24 June, 2013
A former Director of Public Prosecutions has asserted that the Protection of Life During Pregnancy Bill 2013 may be inconsistent with the Constitutional clause which recognises the right to life of the unborn and the equal right to life of the mother and promises to “defend and vindicate that right”.
Under the new act, a woman threatening death by suicide has the legal right (under section 9) to apply for a certificate which, with the consent of three practitioners, allows her to have an abortion. In the event of her failing to get this, she can apply to a committee for a review of the decision.
“She gets two chances to have the life of the foetus terminated,” writes Eamonn Barnes in Saturday’s Irish Times. “At both hearings or examinations she has, very properly, the explicit right to be present and to be heard. As matters stand at present, the foetus gets no chance to have its right to survival advocated at all or otherwise vindicated.”
He goes on: “It is hard to see how this could be regarded as consonant with the Constitution and in particular with the clear provisions of Article 40, section 3, calling for a vindication of its equal right to life.”
“Surely that calls for an equality of opportunity to have both rights to life adequately asserted,” he asks.
Mr Barnes was himself involved in the original X case in 1983 as he was the DPP who referred the case of the 14 year old, pregnant through rape who intended to travel to the UK for an abortion, to the then Attorney General seeking to prevent her travelling, as he believed the 1983 amendment required the state to protect the unborn child.
In his opinion piece he recommends that the Attorney General be the person to vindicate the constitutional rights of the unborn.
“Devising procedures to enable this to happen should not be beyond the wit of mankind. To anyone who may say that it adds an unnecessary procedural layer to an already difficult area, I would simply say that that area is one of life and of death,” he concludes.
Meanwhile yesterday’s Sunday Independent reports that pro life Fine Gael, Labour and Independent TDs and senators are proposing to invoke a constitutional provision to force a referendum on the proposed legislation.
Under Article 27 of the Constitution, the President can decline to sign a Bill into law until it is approved by referendum – if he is petitioned by a third of the Dail (55 TDs) and a majority of the Seanad (30 senators).
Article 27 provides a mechanism by which a Bill can “be put to the people in a referendum [where] the Bill contains a proposal of such national importance that the will of the people thereon ought to be ascertained”.
This procedure has never been used.
According to the paper, among those leading the initiative are Labour TD Colm Keaveney and the Fine Gael TD John Paul Phelan. On Saturday Mr Keaveney said it was a “a politically neutral initiative involving pro-life, pro-choice and non-committed figures”.
“It is about those who are concerned about the escalating democratic deficit in the country,” he added.
A source interviewed by the Sunday Independent said this was “not a matter covered by the whip system; it is not legislation or a motion of confidence, it is a request to refer a matter of deep public interest to the voters. No one is being disloyal to anyone by signing this motion”.
Instead, they claimed, it would “demonstrate that this generation of representatives has a respect for the opinion of the people and for a new way of conducting politics – a democratic revolution if you like”.
Although Fianna Fáil is allowing a free vote on the Protection of Life During Pregnancy Bill 2013, the party is split on the issue. However a strong pro life platform emerged at its recent árd fheis, and pro life Fianna Fáil TDs would likely support such a move.
