STATEMENTS ON THE REPORT OF THE EXPERT GROUP ON THE A, B, & C VERSUS IRELAND JUDGEMENT
Cathaoirleach, I welcome the holding of this debate and the opportunity to address the Report of the Expert group.
The current discussion revolves around legislating for the 1992 X case decision; I will set out why I view this to be a flawed basis for law in this area:
Supreme Court, majority opinion, held that a woman had a right to an abortion under Article 40.3.3 if there was “a real and substantial risk” to her life. This right did not exist if there was a risk to her health but not her life; however it did exist if the risk was the possibility of suicide.
The Irish Constitution section 40.3.3 provides that “the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”
Ireland’s laws state abortion is only allowed where continuation of pregnancy would put a woman’s life (not merely health or other interests) at risk.
The Supreme Court ruled in the X case that the right to life of the mother is “superior” to the right to life of the unborn which was labelled “contingent”.
This departure from the unambiguous constitutional position and the two-patient model it inspires resulted in the legal outcome that if a mother threatens to commit suicide, the Supreme Court holds that she has the right to an abortion.
Unfortunately, the Supreme Court reached this conclusion without hearing expert psychiatric evidence, nor could it have been aware of the huge volume of medical research which has emerged since and which shows that abortion is not a treatment for suicide, but may actually increase its risk, or at its height is neutral in affecting the risk of further mental health illness.
Additionally in the X case there were no time limits placed on that right to abortion in case of suicide. Therefore, legislating on the X case may entail legislating or regulating for an extremely liberal position on abortion: one that would allow all women who establish that they are at risk of committing suicide to have abortions at a late term. Any attempt to place time limits may have the effect of rendering the proposed legislation contrary to the X decision.
This issue resurfaced now due to the decision of the ECHR in the AB& C case:
It is important to note that the ECHR ruled that there is no right to an abortion under Article 8 of the European Convention, and, affirming its earlier ruling in Vo v. France (2007), holds that Contracting States are entitled under the Convention “to choose to consider the unborn to be a person and to aim to protect that life”.
The Court held that “Article 8 cannot… be interpreted as conferring a right to abortion
The situation for the woman called ‘C’ arose because it was uncertain and unclear whether she could have access to abortion in a situation where she believed that her pregnancy was life threatening. Rather than information being unavailable, the problem was that there was nowhere C could go to secure a legally authoritative determination of what her rights were in her situation.
All other complaints were dismissed as well as C’s additional argument that Article 2 (right to life) were violated were dismissed by the ECHR as “manifestly ill founded”.
Thus Ireland had a broad margin of appreciation to maintain its existing laws where they were sufficiently clear, and where not clear it can provide further clarity. It is not required to legislate on the basis of the x case.
Ultimately, since the European Court of Human Rights holds that there is no right to an abortion under the Convention and that Ireland is entitled to protect the right to life of the unborn child,
Since the ABC case did not concern suicidal ideation, and since the X case does more to obscure than to clarify the legal position, the most reasonable, proportionate, and effective way of responding to ABC v. Ireland in order to afford clarity to those in the position of Applicant C is to regulate for the two-patient model which is the current best practice in Irish hospitals and internationally celebrated.
In addressing this Report I am very conscious of the attitudes of the medical profession. Whatever we do here it is the medical profession that will be responsible for dealing with specific cases.
It is not the case that there is no guidance at all available at present and that there is a deep uncertainty in all cases.
Doctors follow the Medical Council Guidelines which were most recently updated in 2009.
They state under Section 21.1 that “Abortion is illegal in Ireland except where there is real and substantial risk to the life(as distinct from the health )of the mother .Under current legal precedent, the exception includes where there is a clear and substantial risk to the life of the mother arising from a threat of suicide. You should undertake a full assessment of any such risk in light of clinical research on this issue”.
They state under Section 21.4 that “In current obstetrical practice, rare complications can arise where therapeutic intervention (including termination of a pregnancy) is required at a stage when, due to extreme immaturity of the baby, there may be little or no hope of the baby surviving. In these exceptional circumstances, it may be necessary to intervene to terminate the pregnancy to protect the life of the mother, while making every effort to preserve the life of the baby”.
I am of the view that these guidelines could provide the basis for bringing certainty and clarity to Ireland’s response to the ECHR judgement.
The issue of Directly Linking suicide and unwanted pregnancy is a profoundly flawed base for legislation particularly when one considers the media guidelines for reporting suicide and self-harm, produced by the Irish Association of Suicidology and the Samaritans. Those Guidelines State; “Avoid Simplistic explanations for suicide although a catalyst may appear to be obvious, suicide is never the result of a single factor or event, and is likely to have several inter-related cases….
Abortion was introduced in Britain under the David Steel 1967 Abortion Act – its intention was to be restrictive, however who could agree that the numbers of Abortions carried out proved to be in any way restrictive; when you look at the number;
1968 – 36,000 Abortions
1973 – 173,000 Abortions
2011 – 190,000 Abortions
It is important to note that approximately 95% of the 190,000 abortions carried out in Britain each year are on Mental Health grounds.
Do we really want to lead our Country down this bleak, dark avenue – I certainly don’t.
Posted: Dec 6, 2012 | Categories: Uncategorized