The principal outcome of the three days of abortion hearings at the Oireachtas Committee on Health and Children was that the agenda has moved on. For the first time, legislators and medical and legal experts were discussing the scheme of a Bill to legislate for the Supreme Court decision in the X case in 1992 based on the passage of the so-called pro-life amendment to the Constitution 30 years ago.
Miss X was a 14-year-old girl who was raped by a neighbour and both she and her parents wanted her to have an abortion in England because she was suicidal. When they sought advice as to whether procuring DNA evidence would assist in a prosecution, the then attorney general, Harry Whelehan, decided to exercise his independent right, parens patriae , separate from his being legal adviser to the government, to act in the public interest to protect the unborn under Article 40.3.33 of the Constitution.
The president of the High Court, the late Mr Justice Declan Costello, refused her the right to travel. The Supreme Court subsequently decided that where there was a real and substantial risk to the life, as distinct from the health, of the mother, she could have an abortion.
Ms or Mrs X is now 35 years of age. One wonders what she privately makes of it all: being the focus of the most contentious and divisive issue in Irish society for the past 21 years? But this is not germaine to three ten-hour days of deliberations in the Seanad chamber by the health committee, joined by other members of the Oireachtas, that ended on Tuesday night. They were discussing, rather then debating, the legal and medical framework for doctors and women where there is a real and substantial risk to their lives.
Like the hearings in January, the discourse between the medical and legal professionals and the politicians was interesting, informative and utterly engaging for any journalist who has covered the social and political debate on abortion since the 1980s.
There were key interventions which stand out. Dr Sam Coulter-Smith, master of what would have been regarded 30 years ago as the "liberal" Rotunda Hospital, saying that the fact that there was no time limit on terminations where there was a risk a risk of suicide in the Bill was "a major ethical dilemma" for obstetricians. But he said "if the psychiatrists tell us the only way the woman's life can be saved is through a termination of pregnancy . . . that is what we will do".
Senator David Norris posing the pivotal political and genuine question raised by Archbishop Diarmuid Martin as to whether we were introducing the most liberal abortion regime in the world since there was no time limit governing termination on the risk of suicide in the heads of the Bill.
Prof William Binchy, a leader of the Pro-Life Campaign in all of the five referendum questions on the issue, was in a time warp at the committee. He argued primarily again about the Supreme Court's decision in the X case. Only as an aside, did he say that Head 4, the provision governing the risk of suicide, was the problem.
Ms Justice Catherine McGuinness, formerly of the Supreme Court, said there had been a number of cases where young people in State care had been permitted to travel for an abortion over the years. The Supreme Court didn’t write judgments in these cases because they viewed the decisions as being in line with the X judgment. She also suggested that “it might be worth a go” for the Government to put a time limit for terminations into the Bill to see if it would be constitutional.
There were, of course, the middle-aged men with Middle Ages views, epitomised by Deputy Peter Mathews, who spoke always in generalities, like the Holocaust, rather than addressing the proposed Bill. Senator Rónán Mullen could be observed handing out scripts to some other members. And it was surprising how few of the 25 women TDs and 18 women Senators turned up to engage in the debate. Minister of State for Health Kathleen Lynch sat through some of it in the public gallery.
For all of that, the hearings were enormously informative and made for a constructive contribution to the debate. Deputy Jerry Buttimer chaired them well. The deliberations make the case, in fact, for the retention of a reformed Seanad where experts in all fields could be drawn into the democratic process.
There are a number of amendments to the general scheme of the Protection of Life during Pregnancy Bill, 2013 , which the Government should consider very seriously arising from the latest hearings.
The Bill provides that terminations of pregnancy may be provided only in the 19 public obstetric units across the country, three of them being voluntary maternity hospitals and 16 managed by the Health Service Executive. A very strong case was made by the medical professionals that these procedures should be permitted in all general hospitals run by the HSE. Holles Street, for example, sends some pregnant women to St Vincent's Hospital in cases where it doesn't have the required expertise.
There should be greater clarity in the Bill about the role of the general practitioner. Head 2 recommends that hospital specialists “shall consult with a woman’s general practitioner where practicable”. It would seem obvious that the GP would normally be the pregnant woman’s first port of call into the health service.
It has emerged that thee are a number of psychiatrists who, for technical reasons, never transferred from the general to the specialists division of medical practitioners in 2007 and this issue should be addressed in the Bill.
There was a compelling case by a number of participants at the hearings to bring greater clarity to the question of consent and capacity to make a decision to terminate a pregnancy, particularly where a person could be between 16 and 18 years of age in State care. There were very strong objections to the criminalisation of a pregnant woman undergoing an abortion in this State on grounds outside of those outlined in the Bill.
Finally, the biggest obligation now resting with the Government is to answer Archbishop Martin's question unambiguously. This was done piecemeal during the hearings. It will be the obstetrician, not the psychiatrist, who will determine the viability of the foetus with the aim, at all times, to vindicate the life of the unborn. "There is no question that a baby of 28 to 30 weeks will be killed" was the way that Dr Rhona Mahony, master of Holles Street hospital, put it.
Geraldine Kennedy is former editor of The Irish Times. She has covered the debate on abortion since the early 1980s and attended the recent three days health committee hearings at the Oireachtas health committee