Fine Gael Leader Mr Michael Noonan TD sent a series of questions today to the Taoiseach about the proposed referendum on abortion and its accompanying legislation.
In a letter addressed to Mr Ahern the Fine Gael leader said the Government's proposals appear to "reinterpret or redefine" the constitutional definition of unborn.
Mr Noonan said he is seeking clarification from the government that the proposed bill will not affect the constitutional protection of the right to life of the unborn.
"It may be that there are a number of issues of fundamental importance which require further thought and consideration," he said.
- The following is a list of 34 issues raised by Mr Noonan in his letter to the Taoiseach on the proposed referendum:
1.The Constitution already guarantees the right to life of the unborn under Article 40.3.3. The Government proposal appears to reinterpret or redefine the definition of 'unborn' contained in that provision. Please explain precisely in what manner the intended legislation and constitutional amendment alters this definition.
2.What effect does the Government proposal have on the definition of 'unborn' insofar as it relates to a human life before implantation in the womb? This would appear to be a constitutionally guaranteed value at present.
3.It is intended that the reinterpretation of Article 40.3.3 be effected and brought about by constitutional amendment and by legislation. Please explain precisely how the Government proposal in legislation is reconcilable with the present constitutional position which contains a general right to life of the unborn. Can this legislation affect the present constitutional provision?
4.It would appear that the Government's proposal does not accord with the position set out on many occasions by the Roman Catholic Church. In particular, I refer to the definition of human life as commencing at the point of conception – not implantation, do you agree?
5.As you are aware, the Supreme Court has identified a number of unenumerated rights which arise under our Constitution. These include the right to bodily integrity, the right to privacy and the right not to have one's health endangered by the State. How will these constitutional rights affect the Government's legislative proposal?
6.Has consideration been given to repeal of the present Article 40.3.3? If not, why not in the light of the definition involved in the current Government proposal?
7.In the light of the previous questions, am I correct in assuming that the matter of interpretation of the provisions of Article 40.3.3 as amended will still be for interpretation by the Supreme Court of the day? How is it anticipated that the Government proposals will impinge on the rights of the unborn and the mother already identified in the Constitution?
8.Please explain the legal or ethical basis for the definition of the word 'abortion' contained in Section 1 of the intended legislation.
9.Please explain the meaning of the word 'medical practitioner' as is contained in the legislation. Does it involve the entire range of medical practitioners or a person engaged in a specialist consultancy?
10.Please explain the meaning of 'approved place' set out in sub-sections 2 and 3 of Section 1. Do I understand that this may mean any hospital or clinic that would be recognised by the State?
11.Is it intended under Section 1 that the reasonable opinion of a medical practitioner should be formed only by that practitioner?
12.Section 2 of the legislation contains a prohibition on abortion. Is the effect of this legislation that prosecutions may take place derived from differing medical opinions in the context of Section 1?
13.Section 3 of the proposed legislation involves a conscientious opt-out clause. How is it intended that this would operate in practice? Would it in any way alter the present position regarding medical practitioners, nurses and other health professionals?
14.It may be contended that this intended legislation is the first step to the introduction of abortion into this country. What would be the Government's view of this contention?
15.What will the status of the Irish language version of this proposal be in the context of interpretation of the relevant constitutional provisions? What steps have been taken in order to ensure the legislation in Irish means precisely the same as the proposed English version?
16.What will be the position of a woman who is pregnant as a result of rape under this legislation?
17. (a)What will be the position of a woman in circumstances such as arose in the X case under the Government's new proposals? In the event of there being a genuine threat of suicide, will such a woman be compelled to travel outside the jurisdiction such as arose in that case? (b)What will be the position of a woman in circumstances such as arose in the C case under the Government's new proposals? In the event of there being a genuine threat of suicide, will it be legal for a Health Board to assist such a woman to travel outside the jurisdiction such as arose in that case?
18.What will be the position of a woman who is pregnant as a result of incest under this legislation?
19.The all-party Oireachtas committee on the Constitution heard evidence from a number of eminent medical practitioners with differing views on the question of a number of medical conditions in the context of abortion. What steps have been taken to identify the effect of this proposal in relation to the range of medical conditions identified as problem issues during those hearings?
20.Is the proposal put forward reconcilable with Protocol No 17 to the Maastricht Treaty?
21.Will any amendment of the Constitution as intended contain the benefit of immunity from EU law provided by the Protocol now or in the future?
22.Does the Protocol not refer to Article 40.3.3 specifically and not to any other new amendment?
23.What is the status of the proposed amendment under EU law generally, particularly in the context of abortion having been identified as a service under the Treaty of Rome?
24.What would be the position under the legislation regarding the use of the 'morning after pill' at a point after 'implantation' may have occurred?
25.What would be the arrangements to provide for debate and amendment of the Government proposals during its introduction? Do I understand that the present proposal will not permit any amendment during its passage through the Oireachtas? In view of the very serious issues which arise, surely there is a profound need for careful debate and clarification. Does this not apply particularly in view of the constitutional protection which it is intended this legislation will have under Articles 26 and 27 of the Constitution?
26.Please provide details of the legal advice which the Government received prior to the introduction of this proposal.
27.It would be helpful to obtain details of the consultation process which took place prior to this announcement.
28.With whom did such consultation take place?
29.In the light of the issues which arise, is there not a case for the matter being dealt with simply by legislation particularly having regard to the necessity for a full, constructive and rigorous debate on these complex issues?
30.What arrangements is it envisaged will take place regarding the running of an amendment to the Constitution having regard to the McKenna decision? Will all groups, pro and anti, be given media access? How will the Government information campaign be run? How will the 'pro' and 'anti' groupings be identified for the purposes of legislative and constitutional compliance?
31.What are the implications for IVF treatment and for embryo and stem cell research of this proposal?
32.Section 1.(3) defines 'woman' as a female person. As the gender of the unborn can be known from an early stage of pregnancy, does this mean that an unborn female is considered a 'woman' under this Act? How will this status compare with the status of the 'woman' who is the mother and how will their constitutional right to life be balanced? Will an unborn male have less constitutional protection?
33.Section 2.(2) 'A person shall be presumed to have intended a natural and possible consequence of his or her conduct, but this presumption may be rebutted'. What test is to be used in rebutting a presumption that a person has intended a natural and possible consequence of his or her conduct?
34.Section 5. As no amendments may be made to the Act without reference to the people, why may a designated member of the Government vary orders under the Act without any reference to the people?