Recently the Oireachtas joint committee on health and children sat for three days to discuss the heads of bill for the proposed abortion legislation. The final day focused on the legal aspects of the heads and had witnesses from legal and medical ethics backgrounds giving their expert opinions. These were the main findings:
There is no legal obligation to legislate for abortion in the case of threatened suicide
We are not obliged to legislate for X as it did not set a legal precedent because it was a conceded point not a legally established one
Without the X case to rely on, Head 4 is simply incompatible with the Constitution, because it allows the deliberate targeting of the life of the unborn in Head 4.
The X case is not the final or only case where suicidality was the plaintiff’s main argument. In the case of Cosma v. Minister for Justice, the argument was refuted for 3 reasons, all of which are relevant to X.
Heads 2, 3, and 4 of the proposed legislation would allow for the direct and intentional termination of the life of the child right up until birth.
The bill’s accommodation of medical ethics is dated, regressive, and potentially dangerous.
Predictably enough Head 4 of the proposed legislation, which deals with the threat of self destruction, was the piece to cause the most vigorous debate. The discussion on the rest of the Heads centred, for the most part, on wording details and clarity, all of which could be corrected with amendment of the wording.
From the testimonies it transpired that we are not bound by the ECHR or by the decision of the Supreme Court in the X case. It was stated by four legal experts, that we are not obliged by the Xcase to legislate to allow for abortion for the threat of suicide. They said that the X case ruling was only applicable to the case itself and was not precedent setting.
Barrister, Paul Brady, criticised the political protest of legal necessity to legislate for suicidality. He criticised the government for falling back on this argument, protesting continuously that they have no choice but to legislate, despite the fact that there is no legal basis for that protest.
He said that Head 4 marks a clear change in the law because it creates a statutory basis in Irish law for what may be a direct and intentional termination of an unborn child’s life. Mr. Brady said that under Head 4 “that the aim of the procedure can be to bring about the death of the child”
Head 4 allows for an abortion to take place up to nine months, even on a partially delivered child (arising from the definition of unborn in Head 1).
But Mr. Brady argued that legislation on the X-case decision was not obligatory because the suicide principle in the X-case “was a conceded point and was never argued in the X-case.” He explained that in the X-case there was no “legitimus contradictor” to argue against, and test the decision, and therefore it could only bind the particular case. Justice McCarthy referred to the same in his X case judgement.
In making this point he quoted Justice Brian Walsh who was a member of the ECHR, the Irish Supreme Court, and the law reform commission etc.
This point was also argued by Dr. Maria Cahill who acknowledged the importance of respecting precedents, but highlighted that the Supreme Court’s own understanding of precedent is that if the point has not been argued, then it does not form part of the decision of the Court. She cited the case of Attorney General v. Ryan's Car Hire Ltd” in which the Supreme Court stated that when a point has been conceded, the precedential value of the decision on that point is “weakened to vanishing point”.
In layman’s terms, because the point was conceded in the X case - arguments were not made for or against – its constitutionality and legal weight was not tested and it was therefore not established as a principle of law.
This is relevant to the X case because in the X case, there were no arguments on the point of whether suicidality could – as a matter of medicine or as a matter of law – legitimately be treated by abortion. Therefore the threat of suicide as conceded in the X case does not set a legal precedent and “the rhetoric that we are compelled to legislate for the X case” is unsupported.
Without the X case, Head 4 must simply be measured against the Constitution, which recognises unambiguously that unborn, as well as born, persons, enjoy a fundamental right to life. The deliberate targeting of the life of the unborn makes this legislation unconstitutional.
The UCC law lecturer added that since the X-case the suicide imperative has been used and developed by the 2006 case of Cosma v. Minister for Justice in three ways, all of which would be violated by head 4.
The X-case judgment has been criticised for being flawed and for being dated considering the amount of evidence based medicine that rejects abortion as a treatment for suicidality, but far more pertinent to the heads of bill we learned that it has no weight as precedent because it was a conceded point. Even though the government constantly fall back on the obligation to legislate argument, not one of the legal witnesses who support the legislation contested this assessment.
Prof. William Binchy shared what seems a unanimous view that Head 2 and 3, which deal with treatments to women which require the termination of pregnancy rather than the explicit termination of the life of the child, are ethical and reflective of current medical practice. Head 4 however, “gives us the scenario that the existence of the child causes suicidal ideation” he said. So this clause allows intentional killing of the child right up until delivery.
Dr. Ciarán Craven spoke strongly about legal ethics shortfalls in the heads. In particular he said that the notion of “good will” as used in the heads insufficiently regulated the nature of patient doctor relations. He said that while “good faith” was necessary, it is not sufficient.
He offered the opinion that the old models of good faith leads to a danger of clinical hegemony and potential abuse. He said that bad faith is virtually impossible to demonstrate but “by incorporating a reference to evidence based practice we are providing a template against which to measure”. He put it that “Good faith and proper professional practice are not interchangeable” and added that relying on good faith is insufficient, according to both the courts and the Medical Council.
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