Provisions to permit abortions for pregnant women facing inevitable miscarriage or carrying foetuses with fatal abnormalities cannot be included in the Protection of Life during Pregnancy Bill, Attorney General Máire Whelan has told the Government, theselect committe on health heard last night.

The Attorney General is the Government’s chief legal adviser and provides guidance as to the constitutionality of legislation.

Calls for the inclusion of an amendment to allow pregnant women in such circumstances to be permitted abortions were made by a number of deputies at a meeting of the subcommittee last night. Minister for Health Dr James Reilly, however, said such provisions “cannot be included”.

“Nobody can fail but to have sympathy for the women who find themselves in this situation,” he said. “But I have received legal advice to the effect that the inclusion of this issue goes beyond the scope of the ABC versus Ireland case. The purpose of this Bill is to clarify existing rights. I have to take the advice available to me. For these reasons, I can’t accept the amendments.”

Advice given
Minister of State at the Department of Health Alex White said the advice given by the Attorney General was that a foetus which is incompatible with life – but is capable of being born alive – is "likely to attract" the constitutional protection of the right to life.

“That is the core of the advice that we have from the Attorney General and that is the position. I think that is a profound piece of advice the Government can’t ignore.”

Both Ministers said the Government must have “constitutional certainty” about legislation it proposes. “It can’t be done if there is a known risk as to its constitutionality,” said Mr White. “I know that sounds very harsh but it is the true legal position. A risk can’t be taken.”

Sinn Féin’s Deputy Caoimhghín Ó Caoláin said some former attorneys general who may offer different advice.

“The person who is tasked with giving the advice and standing forth in the Supreme Court to defend it is the current Attorney General and that is the person who I listen to,” said Dr Reilly.

“One thing to say is that the law likes to deal with the certainties of things. That makes it very difficult to deal [with] particularly the issue of inevitable miscarriage because that’s a diagnosis that isn’t always correct.”