Always and Never: Recommendations

The IFPA's Recommendations to the All Party Oireachtas Committee on the Constitution are in three parts.

• Primary Recommendations set out the actions which the IFPA would like to see emerge from the process as ultimate outcomes. These are the measures which we feel offer the best solution to the needs of Irish women and Irish society in general.
• Secondary Recommendations relate to a situation in which the actions contained in our Primary Recommendations are not ultimately implemented.
• Process Recommendations relate to ways in which the Committee may seek to achieve a national consensus on this issue.

4.1 Primary Recommendations

Having regard to the matters set out above, the IFPA submits that:

4.1.1 The committee should strike out Option (i) (Absolute Ban on Abortion) for the reasons set out in the Green Paper and in this submission.

4.1.2 The Committee should recommend that Article 40.3.3 of the Irish Constitution be repealed in its entirety and the Constitution should be amended to provide that any right to life in the Constitution only refers only to persons who are born.

4.1.3 The Committee should recommend that Articles 58 and 59 of the 1861 Offences Against the Person Act should be repealed.

4.1.4 Legislation should be introduced to permit minors to have access to the courts so as to ensure that they are equal to other women in regard to their ability to avail of medical treatment, including termination of pregnancy.

4.1.5 Increased resources should be made available to health boards, schools and family planning service providers, including the IFPA, to make available increased education, information and contraceptive services to the general population. These measures should include:

• the introduction of a universal free entitlement to sexual and reproductive health care for all;
• enabling access to this new entitlement via any service provider capable of demonstrating possession of a family planning certificate, high quality premises and high quality standards of service;
• the promotion of increased take-up through choice of service by enabling users to choose where to "spend" their free entitlement;
• the rigorous enforcement of statutory quality standards for condoms (eg. EN 600) and outlawing the sale of so-called "novelty condoms" or "fundoms" which have no prophylactic value;
• the provision of funding to enable the IFPA to provide a national contraceptive education and information programme on a planned and well-resourced basis.

4.1.6 Implementation in full of the IFPA's "TEN POINT PLAN To Reduce Unplanned Pregnancy", submitted to the Department of Health in 1993.

[Appendix (i): Improving Reproductive Healthcare in Ireland, IFPA 1993] see Appendix A, Facing up to Reality, p.20.

4.1.7 That increased resources be made available to health boards and to agencies such as the IFPA to fund the development and operation of specialist free sexual health services for young people, in each urban population centre, along the lines recommended in A Young Peoples Health Centre for Dublin IFPA/EHB, April 1997.

4.1.8 That the relevant government departments should establish a quantified target reduction in the relatively high proportion of Irish abortions carried out later than the twelfth week of gestation, as an immediate practical measure, supported by appropriate programmes and resources.

4.1.9 That the Regulation of Information (Termination of Pregnancies Outside the State) Act, 1995 should be extended so as to regulate the activities of agencies that do not give Act Information, and those not funded by the state.

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4.2 Secondary Recommendations

Having regard to other proposals which have been or may be made to the Committee we further submit that:

4.2.1 The committee should recommend to the government that it should not attempt to amend Article 40.3.3 of the Irish Constitution. The IFPA contends that there is no form of words which can satisfactorily amend this Article. The Green Paper draws attention to the considerable difficulties which exist in this regard. We further submit that there is no form of words which could be presumed likely to command the support of a greater number of the electorate in a conventional constitutional referendum.

The IFPA submits that Article 40.3.3 is fundamentally and inherently flawed, not least because history has demonstrated that the issue of abortion is too complex to be adequately dealt with by way of constitutional provisions. Time spent attempting to amend this article would be time wasted and would not contribute to a resolution of the debate.

4.2.2 In the event that the Committee does not agree to propose, or the people of Ireland do not agree, to delete Article 40.3.3 of the Constitution, the government should address the issue of abortion through legislation. In such circumstances we recommend that:

(a) The legislature defines an "unborn" as a foetus which has reached that stage of pregnancy at which, if born, it would be capable of independent life.

(b) The legislature amends Articles 58 and 59 of the 1861 Offences Against the Person Act so as to provide that it would be unlawful to induce the termination of a pregnancy of more than 22 weeks gestation, other than for the purposes of premature delivery, unless necessitated in order to save the life of the pregnant woman, or where there is a congenital abnormality of the foetus rendering it incompatible with life.

It would be necessary, in the interests of women's health, to provide that it would be unlawful for any person other than a person appropriately qualified and trained, and registered under the Medical Practitioners Act, 1978 to induce a termination of pregnancy.

4.2.3 Legislation should be introduced to permit minors to have access to the courts so as to ensure that they are equal to other women in regard to their ability to avail of medical treatment, including termination of pregnancy.

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4.3 Process Recommendations

4.3.1 "Preferendum Vs Neverendum"
In the event of any option being selected which requires a referendum, the IFPA strongly recommends that the electorate be given the opportunity to express their full preferences in respect of the various options set out in the Green paper ranging from Option (iii) to Option (vii) (e), excluding Option (iv).

This expression of views should take the form of a Preferendum in which each voter would be able to express their preferences for each of the choices on a similar basis to the conduct of a Presidential election or single seat by-election, with all votes being exhaustively re-distributed, at full value, following the elimination of the least popular choice at each stage of the count.

Variants (a) to (e) under Option (vii) should be grouped in layers, using the example of the opinion poll referred to at 3.7.2., to facilitate full democratic expression. For example a person voting for option (e) would clearly also be in support of option (d), (c), (b) and (a) as well as Option (v).

4.3.2 Political Assessment
This would be an innovative method for establishing true national consensus on this issue. It would have the advantage of enabling and requiring electors to consider the detail of the issue and look beyond simple black and white or yes or no, scenarios.

The Preferendum concept is consistent with the proportional principle of our electoral system, inherently democratic and it probably offers the only way to move things forward constructively, in the context of referendum politics. In contrast, a further simplistic conventional referendum could be characterised as just another in a series of "Neverendums", the fifth in less than twenty years on this issue.

A further advantage of this approach is that it would give clear guidance to legislators.

It would probably be essential, prior to the holding of such a Preferendum, that the current post McKenna Judgement approach to referenda be revised to facilitate funding and 'airtime' for advocates with genuine interest in the issue, as opposed to the neutral Referendum Commission.

The IFPA is available to provide further detail or assistance with the Preferendum concept, in this context, on request.