Avortement : Irlande : les irlandais rejettent le texte boiteux du gouvernement

Texte complet de l'épiscopat, appelant à voter "oui"

The Catholic Bishop's Conference

1. It is the clear and consistent teaching of the Catholic Church that human life is sacred from the moment of conception. In his 1995 Encyclical Letter The Gospel of Life (Evangelium Vitae) Pope John Paul II re-stated the teaching that "the human being is to be respected and treated as a person from the moment of conception... Therefore from that same moment his or her rights as a person must be recognised, among which in the first place is the inviolable right of every innocent human being to life"(#60). Nothing can ever justify the deliberate killing of an innocent human being.

2. The basic right to life is a natural and moral right which does not depend on legal or political recognition for its value. However, the Church has always insisted that a primary function of law is to protect the most needy and vulnerable human beings, including the unborn.

3. For these reasons, it is the responsibility and the entitlement of the bishops of Ireland, in communion with the Universal Church and its Supreme Pastor Pope John Paul II, to offer guidance to our people regarding the proposed Constitutional amendment as set out in the Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001.

4. At present, the law in Ireland concerning the right to life of the unborn is determined by Article 40.3.3 of the Constitution as interpreted by the Supreme Court in the "X Case". It remains our conviction that the judgement in that case is profoundly flawed. It is for this reason that we have called on many occasions for a new referendum which would effectively overturn this judgement and restore adequate protection for the unborn.

5. We welcome and support the new proposal as a significant improvement on the current unsatisfactory situation. In particular, this proposal would appear to set aside deficient aspects of the "X Case" judgement, including the acceptance of the risk of suicide as a legitimate ground for justifying abortion.

6. We are satisfied that, on any reasonable interpretation, the specific and particular protection offered to the unborn by the new proposal does not dilute or weaken the general protection already afforded by Article 40.3.3 of the Constitution.

7. But even if this new proposal is enacted, outstanding issues remain which require the ongoing attention of our legislators. We believe that the existing rights of the unborn from the moment of conception under Article 40.3.3 of the Constitution need to be reinforced by precise legislative measures.

8. In particular, we are concerned that adequate and clear legal protection be offered to the unborn prior to implantation. This is particularly urgent in view of what is happening and what is likely to happen in the area of cloning and research on human embryos, and also in the area of assisted human reproduction where particular problems arise regarding the storage and disposal of human embryos. It is of vital importance that embryos are never treated other than as human persons whose inherent worth and dignity are valued and vindicated.

9. In this regard, we are about to make a substantial submission to the Government Commission on Assisted Human Reproduction setting out in detail our moral concerns in this area.

10. The issues raised and addressed by the proposed referendum are crucial and merit the serious attention of all voters. In recognising the proposed legislation as a significant anti-abortion measure rather than a comprehensive pro-life amendment, we see the proposed referendum as an opportunity to ensure that more secure protection is offered to the unborn. We believe that this is an opportunity that should not be lost, as a rejection of this measure would effectively leave the X-Case judgement as the authoritative legal interpretation of Article 40.3.3.

11. We share the concern of many groups and individuals that the new proposal strengthens legal protection for the unborn only after implantation in the womb. We understand the reluctance of many who are opposed to abortion to vote for a measure which does not seem to vindicate the right to life of the unborn from the moment of conception. However, it is our conviction that the new proposal represents a considerable improvement on the existing situation, and that it does not in itself deny or devalue the worth and dignity of the human embryo prior to implantation.

12. In dealing with what appears to be a limited or imperfect measure, we believe that, in the context of The Gospel of Life (#73), Catholic voters should feel free in conscience to support this measure, even if it is viewed as less than might have been desired.

13. We are of the view that a clear legal prohibition on procured abortion, as set out in this proposal, represents an important step towards ensuring adequate protection for the life of the unborn. However, we are aware that legal measures alone will never suffice, and that ultimately we must always be guided by the moral law, which forbids deliberate abortion and demands that we do everything in our power to cherish and support life at every moment of its existence.

14. Abortion, in the moral sense, "is the deliberate and direct killing, by whatever means it is carried out, of a human being in the initial phase of his or her existence, extending from conception to birth" (The Gospel of Life #58). Any intentional destruction of human life once begun, whether by experimentation, so-called therapeutic cloning, chemical means, such as the morning-after pill, or by medical intervention is contrary to the moral law.

15. We wish to express our continuing commitment to supporting any woman faced with an unwanted pregnancy. In particular, we want to express our pastoral concern for those women who feel that abortion is the only option available to them. We warmly endorse the work of CURA which was set up to ensure that any woman unhappily pregnant has easy access to the help she needs.

16. At the same time, we are reminded by Pope John Paul II that "often the woman is the victim of male selfishness, in the sense that the man, who has contributed to the conception of the new life, does not want to be burdened with it and leaves the responsibility to the woman" (Crossing the Threshold of Hope p.206).

17. In conclusion, we encourage all our people to vote in the forthcoming referendum, and we ask that these coming weeks be a time of special prayer for God's guidance. As the great feast of Christmas approaches we rejoice at the birth of the Christ-child who came into the world that we "may have life and have it to the full" (Jn 10:10)

Texte complet de l'organisation pro-vie "Mother and Child Campaign", appelant à voter "non"

The Mother and Child Campaign

The Current Referendum Proposal Explained

THE GOVERNMENTS PROPOSAL.

The original Eighth Amendment, as amended itself by the Thirteenth and Fourteenth Amendments, is Article 40.3.3 and currently it reads:

"The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees by its laws to respect, and as far as is practicable, by its laws to defend and vindicate that right. This subsection shall not limit freedom to travel between the State and another state. This subsection shall not limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another state."

The Government, by an unusual method, which was originally devised for the constitutional amendment which followed the Belfast Agreement, proposes to add two provisions, Article 40.3.4 and Article 40.3.5, to follow this. Article 40.3.4 states:

"In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002."

Article 40.3.5 will have the effect of ensuring that the PHLPA shall not be subject to amendment except by referendum in the same manner as the Constitution itself. After these changes have been made, if the Dail and Seanad do not pass the PHLPA within 180 days exactly as it is laid down in the proposal, the Constitution will revert to its present reading. If, however, they do enact the PHLPA, exactly as stated, then it must be signed into law without being referred to the Supreme Court to test its constitutionality.

Article 40.3.4

Article 40.3.4 if passed will state:

"In particular, the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act."

The words "in particular" in the proposed Article may be taken to have their usual meaning. They are preceded by a general statement in this case Article 40.3.3, one aspect of which is then expounded upon in a way which neither extends nor exhausts the generality of the preceding statement. Much has been said by advocates of the current proposal of the significance of these two words. Since there is a reference to the unborn in the womb it follows that there exists such an entity as the unborn outside the womb, from which they extrapolate a general protection in Article 40.3.3 for the unborn from conception.

Such inference drawn from the two words, "in particular", is misplaced since, while they may have the meaning claimed, they may have other equally valid interpretation also. For example if the "unborn" is defined as post-implantation, this would indicate the crucial significance of time. It could be validly stated that the phrase refers to the unborn post-implantation "in the womb" and the unborn outside the womb are embryos after fourteen days who, in the natural course of events would have been implanted, had their creation not been artificial. The phrase could also be cited as an indication that while the Act exhausts the legal rights of the "unborn" it does not exhaust the legal rights of the mother.

Article 40.3.4 also uses the phrase "in accordance with". If these three words had been replaced by the single word "by", then it would be clear that the unborn in the womb might be afforded further legal protection which does not accord with the PHLPA. But as it stands, the proposed Article 40.3.4 could conceivably render unconstitutional any provision in statute law purporting to protect the unborn in the womb unless that provision is in accord with the PHLPA.

THE PROTECTION OF HUMAN LIFE IN PREGNANCY ACT.

The Protection of Human Life in Pregnancy Act begins "In this Act, 'abortion' means the intentional destruction by any means of unborn human life after implantation in the womb of a woman." It goes on to state that this definition excludes "the carrying out of a medical procedure by a medical practitioner at an approved place in the course of which or as a result of which unborn human life is ended where that procedure is, in the reasonable opinion of the practitioner, necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction." The Act gives some explanation of the terms approved place, medical practitioner, reasonable opinion, and woman.

It is quite clear that the intentional destruction of unborn human life is contemplated by and provided for in the PHLPA. The Government refused to accept amendments to the Act which would have changed the intentional killing of the unborn child allowed by the active word "ended" to the passive and neutral word "lost", which might have eliminated directness, and would have paralleled the "loss" of the woman's life referred to in the PHLPA. They refused also to accept any explicit reference to the ending of the child's life being by way of unsought side effect, howsoever phrased.

As it stands the intentional destruction of the unborn child is permitted where that destruction is deemed necessary "to prevent a real and substantial risk of loss of the woman's life", ( "chun cosc a chur le baol readach substaintiuil go bhfaighidh an bhean bas" ), and the risk is not of suicide. And that destruction may be deemed necessary in the opinion of a registered medical practitioner. This is qualified insofar as his opinion must be "reasonable", must be made "in good faith", and must have "regard to the need to preserve unborn human life where practicable", and a written record must be made of it. Requests to the Government that "regard" be replaced with "due regard", in parallel with Article 40.3.3, were rejected.

There is no guarantee that the real and substantial risk must actually occur. If it might reasonably be expected to occur later in pregnancy then, under the PHLPA, the intentional destruction of unborn human life might lawfully be carried out as a preventative measure. This might happen, for example, in relation to the conditions known as placenta accreta and placenta previa, which are not usually diagnosed until about 32 weeks but can reasonably be foreseen long before that time. Note the PHLPA allows for "prevention" of risk. Although the Irish language text is stricter and ought to take precedence over the English under Article 25.4.6 of the Constitution, a Supreme Court Judge could, (as did McCarthy J. in the X case when discussing the difference between "as far as practicable" and "sa mheid gur feidir e), neglect the Irish text of the relevant Article 25.5.4 and, having difficulty identifying a conflict, dismiss the matter by saying that "Historically, the Irish text is a translation of that in English."

The PHLPA requires only the reasonable opinion of a single medical practitioner whereas the English 1967 Abortion Act requires two. Furthermore, there is no age limit set for when the medical procedure which ends the unborn child's life, is carried out, nor the method by which it is carried out. The Mother and Child Campaign have been advised that post-viability, the likely interpretation of the Act is that the child must be delivered alive insofar as it would not be considered "reasonable" having "regard to the need to preserve unborn human life where practicable", to do otherwise. This however is not guaranteed. Unborn human life pre-viability may be destroyed by any means at the discretion of the medical practitioner, including the removal of the child piece-meal, since in such a case it would not be practicable to preserve unborn life.

While the PHLPA contains criminal sanctions for the crime of abortion as defined in the Act, (any person who carries out or effects such an abortion in the State, or who attempts to do so, or who aids, abets or procures any other person to do so, will be guilty of an offence), it substantially reduces the penalties for the crime from life imprisonment to a maximum of 12 years imprisonment, or a fine or both. There is no mandatory sentence and the above are maximum not minimum penalties. Requests that sentencing be mandatory were rejected.

Crucially a prosecution can be brought only by, or with the consent of, the Director of Public Prosecutions. Concerned parties will not be permitted to intervene if the law is being openly flouted. Even the father of an aborted child will not be allowed to initiate the prosecution of his child's killer. At the present moment the Society for the Protection of the Unborn Child has "locus standi" to bring cases concerning the right to life of the unborn before the courts, while for others it may be established on a case by case basis. Requests that this restriction be eliminated were rejected.

THE SUBTRACTIVE NATURE OF THE CURRENT PROPOSAL.

A key claim by pro-life advocates of accepting the Government's proposal is that it is "non-subtractive", which is to say that there are no rights or protections currently afforded to the unborn child that are removed or diluted by the proposal. It is a measure of the extent of the proposal's offensiveness that among its most ardent supporters a primary contention is that it doesn't make the current situation worse. In any case the contention is false on a number of crucial grounds.

The PHLPA in seeking to be an interpretation of Article 40.3.3 as a protection for the unborn child in the womb significantly broadens the conditions established in the X case under which human life can be lawfully destroyed. Firstly, it will no longer be necessary for the risk to the life of the mother to have been established as a matter of probability. Or more precisely that probability will be held to have been established by the reasonable opinion of a single medical practitioner. Secondly, the destruction of human life is permissible as a preventative measure and not necessarily as an avoidance as in the X case. Thirdly, termination need no longer be the only way of avoiding the risk; termination must be in the reasonable opinion of the practitioner, necessary to prevent the risk. Fourthly, as we will deal with in the next section, the proposal probably removes all protection from embryonic life prior to implantation.

The PHLPA repeals Sections 58 and 59 of the Offences Against the Person Act 1861, removing the criminal penalties attaching to "unlawful" abortions, and replacing them with criminal penalties attaching only to post-implantation abortions.

In November of 1992 the Irish people, supported and encouraged to do so by most pro-life organisations, rejected an amendment proposal that may well be better than this one and was certainly no worse. That amendment would have meant that a termination could only be carried out where it was necessary to save the life, as distinct from the health, of the mother where there was an illness or disorder of the mother giving rise to a substantial risk to her life. The reasonable opinion of one medical practitioner may well not have sufficed in law for these conditions to be satisfied. The amendment, despite its positive points, was rejected by most pro-life people because it allowed for the direct and intentional killing of innocent human life.

THE RIGHT TO LIFE OF THE "UNBORN" PRIOR TO IMPLANTATION.

The pro-life movement world-wide has always held that human life begins at conception, more technically termed fertilisation, and that the unborn child has the natural law right to the fullest possible protection in positive law. That view is in accord with the teaching of the Roman Catholic Church, and is supported strongly by all the available scientific evidence. The Government's current proposal does not, of course, deal with the protection of human life prior to implantation and in that sense it is an inadequate measure from a pro-life perspective.

It has been contended, however, that the Amendment (and Act) is an anti-abortion measure rather than a comprehensive pro-life amendment. As such it would have to be judged solely on its merits in achieving protection for the post-implanted unborn since it would remain neutral as regards the pre-implanted embryo which would continue to enjoy the same legal rights as currently, whether these rights are considered satisfactory or not. This is then a core issue - does the proposal affect either the definition or the protections given to the "unborn", prior to implantation?

The question is far from being merely philosophical or academic. In the present context it has very real and practical consequences since the Government has already announced its intention to bring forward legislation to provide for regulation in the areas of In Vitro Fertilisation treatment and embryo and stem cell research in the aftermath of the report of the Commission on Assisted Human Reproduction, which is now engaged in deliberations. The issue of the scope of the term "unborn" in the Constitution was raised by that Commission in its recent document, " Key Issues in Assisted Human Reproduction." In that document the Commission states, in relation to intervention in the process of human reproduction, that while "Many countries have legislated in recent years to set down the parameters within which such interventions can take place, ... there is no such legislation in Ireland." The Commission goes on to say "The question of whether or not an embryo enjoys the protection given to the unborn in Article 40.3.3 of the Constitution has not been adjudicated on. If it were held to enjoy such protection, this would have very serious implications for current practice... The definition of the unborn is crucial in the area of assisted human reproduction."

The Commission is of course correct in stating that no definition of unborn currently exists in Irish law, either Constitutional or statute. We do, however, have some indicators, in particular we have Mr. Justice Hamilton's view in the High Court in 1988, ( The Attorney General [SPUC] vs. Open Door Counselling and Dublin Well Woman Centre. His view, made obiter, was that the unborn enjoys legal protection from conception on the grounds that the Offence Against the Person Act 1861, Sections 58 and 59 explicitly omitted the words "quick with child" from an earlier statute of 1803. The PHLPA repeals these sections and consequently any views based on them.

It is nonetheless contended that the Amendment and Act do not seek to define the beginning of human life, which is in the strictest terms correct. However during the Seanad debate on the current proposal there was a motion put down by Senator Ryan to define the term "unborn" in the Constitution as being the post-implanted embryo. The Minister for Health and Children, Micheal Martin, rejected the need for the amendment and said, "Given the doctrine of harmonious interpretation, particularly if we read Article 40.3.3 and Article 40.3.4 together, our advice is that the situation now is far more certain than it was prior to this legislation being brought forward." He reiterated this position several times throughout the Seanad debate. Put into context, it is clear that he was, by statements such as this, trying to assure certain Senators that, although the referendum proposal does not explicitly define the term "unborn", it nonetheless implies that it has a meaning which would contribute to the legalisation of IUDs and the so-called Morning After Pill. It can be inferred that his legal advice is that, under a harmonious interpretation of Articles 40.3.3 and the proposed Article 40.3.4, human life in its earliest stages will not have the protection of law.

On the following line of reasoning, the scope of the term "unborn" in Article 40.3.3 and the proposed Article 40.3.4 cannot include all human life from fertilisation without introducing a degree of disharmony into the Constitution: Article 40.3.4 specifies that the "unborn in the womb" shall be protected in accordance with the provisions of the PHLPA; this certainly must include the unborn in the womb before implantation if such exists. But careful reading of the PHLPA shows not only that no human life before implantation is afforded any protection by the PHLPA, but that any protection which might have been afforded by Section's 58 and 59 of the Offences Against the Person Act is explicitly removed by the PHLPA. This apparent disharmony and the attendant disharmony between Article 40.3.3 with the PHLPA attached and the explicit guarantees of Article 40.3.3 can be avoided only by asserting that there are no unborn in the womb prior to implantation.

That there may be unborn outside the womb is one inference in law from the fact that the proposed Article 40.3.4 adverts particularly to the unborn in the womb. In this case a harmonious interpretation of Article 40.3.3 and Article 40.3.4 requires that there are no unborn in the womb prior to implantation and that there are unborn outside the womb. One harmonious interpretation would be that the scope of the term unborn in the Constitution is from implantation or, in the case of a fertilised ovum outside the mother's body, from 14 days after fertilisation, this being the time at which, in the natural course of events, it could be expected to have been implanted.

Clearly the effect of the Government's proposal is not neutral on the crucial issue of the pre-implantation child embryo but is a significant undermining of the current position. This is in line with the Government's own claim that one of the effects of the proposal is to clear up any doubts in regard to the legality of the IUD or the so-called Morning After Pill. The proposal would also clear the way for the legalisation of embryo and embryonic stem cell research allowing Ireland to attract some of the 300 million euros already allocated by the European Union for such research, as well as any other funding private or public that may become available.

The Mother and Child Campaign requested of the Government that certain amendments should be made to the proposal. Firstly that the proposed Article 40.3.4 be amended to state that "In particular, the life of the unborn in the womb after implantation in the womb of a woman shall be protected by the provisions of the Protection of Human Life in Pregnancy Act", so that the Article mirror the wording of the protections granted in the Act, or alternatively that the Act should omit reference to "after implantation" in its definition of abortion to read, "In this Act, 'abortion' means the intentional destruction by any means of unborn human life in the womb of a woman" Either course would have allowed the definition of "unborn" to be held as being from the moment of fertilisation without precluding a harmonious reading of Article 40.3.3 and Article 40.3.4 together.

We further requested an explicit definition of unborn to be added to Section 4 of the PHLPA stating that "This Act does not exhaust the legal rights and protections afforded to the unborn under Article 40.3.3, such rights and protections being acknowledged as existing from the fertilisation of a human ovum."

We also requested the Sections 58 and 59 of the Offences Against the Person Act should not be repealed until they were replaced by provisions in law equally strong, though preferably stronger.

The Government rejected these requests.

TRAVEL AND INFORMATION.

Section 4 of the PHLPA purports to be a simple re-statement of the current law relating to Travel and Information, copperfastening the Thirteenth and Fourteenth Amendments to the Constitution passed by referendum in November of 1992, and protecting them from any insinuation that they are undermined by the PHLPA.

However the PHLPA goes further in stating explicitly that the Act cannot be interpreted to restrict travel where such travel is for the express purpose of committing what would, in this jurisdiction constitute a crime of abortion as it is defined. It could conceivably have the practical effect of preventing a future Oireachtas from prohibiting a Health Board or charitable body other private body from providing funding for abortions since such a prohibition might amount to an attempt to protect the life of the unborn in the womb in a way which is not "in accordance" with the PHLPA.

While it might have been possible in 1992 to believe that the Information Amendment had a restrictive capability, it is quite clear from the Information Act, what such a vote meant in practice and what confirming it today in the PHLPA means in practice.

In any case we are being asked to support a gross hypocrisy, namely that abortions, which we find intolerable in Ireland, are acceptable once carried out abroad. That such might be the current legal position regardless is beside the point, no pro-life organisation of any credibility supported the amendments in 1992 and it would be absurd to endorse them now. Requests that Section 4 subsections 1 and 2 be deleted from the PHLPA were rejected.

THE POSITION OF THE CATHOLIC CHURCH.

The position of the Catholic Church was well articulated by the Irish Bishops in 1995, shortly after the Supreme Court had ruled that natural law is not antecedent and superior to the Constitution. It applies to the PHLPA exactly as it does to the X case ruling and exactly as it did to the referendum proposal in 1992. In 1995 the Bishops said:

"Society and the law exist in order to serve the human person. A law which purports to authorise the direct and intentional killing of an innocent human being withdraws the protection to which every innocent life is entitled and denies the equality of everyone before the law. Such a law, therefore, contradicts the very purpose for which law exists and is not a true, morally binding law, but rather an act of violence and a corruption of law... The declaration that it is legal, at least under certain conditions, deliberately to kill an unborn child authorises the violation of a defenceless human being's most basic right. Such a decision can properly be called a corruption of law. The Supreme Court judgement in the X case was, therefore, unjust."

Set against this background the statement of the Episcopal Conference last December has created a great deal of confusion among those who would take the Catholic Church's view as their starting point. The precise wording of the Bishop's statement is important, particularly insofar as they say:

"In dealing with what appears to be a limited or imperfect measure, we believe that, in the context of The Gospel of Life (#73), Catholic voters should feel free in conscience to support this measure, even if it is viewed as less than might have been desired."

There is a crucial reference to Section 73 of the encyclical Evangelium Vitae and we must understand by it that weighing up the proposal against the measure set in this Section was instrumental in their conclusion that Catholic voters could feel free in conscience to vote for the measure. That Section states:

"In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit obey it, or to take part in a propaganda campaign in favour of such a law, or vote for it."

The Holy Father then goes on to qualify this as follows:

"A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorised abortions, in place of a more permissive law already passed or ready to be vote on... when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit co-operation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects."

It has been suggested to us that the reference to "elected official" negates the relevance of this entire Section for the ordinary citizen voting in a referendum, and while we accept that this may be a point of argument, we cannot but conclude that insofar as the electorate form the legislature in all practical senses in a referendum the term must be seen as applying to each voter. However from the evidence presented in this document we believe that it is impossible to conclude that the current proposal is more restrictive than the present law, or that it would limit the number of authorised abortions, or that it would limit the harm done by the present law, or that it would lessen its negative consequences at the level of general opinion and public morality. In fact the conclusion inescapably is the opposite. The harm done both by and to the law by the X case ruling would in fact be secured and confirmed by the PHLPA, an Act which cannot be amended except by referendum. And the attachment of this Act to a new constitutional provision would alter the meaning of the Constitution in ways which will have immeasurable negative consequences, not only at the level of general opinion and public morality, but at the practical level of life and death for embryonic human life.

Mother and Child Campaign

60a Capel Street, Dublin 1