Concerns about Protection of Life During Pregnancy Bill

The Protection of Life During Pregnancy Bill is within the constraints of Article 40.3.3° and it is right that thirty years after its insertion into the Constitution, there will be legal clarity for women and for doctors. It was not good enough that this was simply regulated by Medical Council guideline. As Justice McCarthy wrote in 1992 in a concurring judgment to Attorney General v. X,

I think it reasonable, however, to hold that the People when enacting the Amendment were entitled to believe that legislation would be introduced so as to regulate the manner in which the right to life of the unborn and the right to life of the mother could be reconciled. In the context of the eight years that have passed since the Amendment was adopted and the two years since Grogan’s case the failure by the legislature to enact the appropriate legislation is no longer just unfortunate; it is inexcusable. What are pregnant women to do? What are the parents of a pregnant girl under age to do? What are the medical profession to do? They have no guidelines save what may be gleaned from the judgments in this case. What additional considerations are there? Is the victim of rape, statutory or otherwise, or the victim of incest, finding herself pregnant, to be assessed in a manner different from others? The Amendment, born of public disquiet, historically divisive of our people, guaranteeing in its laws to respect and by its laws to defend the right to life of the unborn, remains bare of legislative direction.

I do have a concern about the effect of the provisions for suicide. I do think that a woman whose pregnancy is contributing to her suicidal ideation should be allowed to have an abortion. But it is also possible that someone could overcome their feelings of suicide while still being in a condition of severe mental or physical distress. Both she and her doctor might still believe it the best thing for her well-being that she receive an abortion, but it would no longer be an option.

The provision of abortion in the case of suicide ideation means that a woman would end up confirming to herself, to her own GP, to two consultant and to an obstetrician that she may her take her life. This burden means that in most instances, a woman would most likely still feel it preferable to travel obtain an abortion. What has not received enough focus is the mental effect it would have to confirm this feeling again and again, that it could worsen the impact, and knowing that if she were to find that she was no longer suicidal, she could no longer obtain an abortion. Her GP would ordinarily attempt to alleviate her condition of suicidal ideation; but in this case, while he believed that an abortion was in her best interest, he would feel conflicted as to whether he should do so.

This situation is a result of the constraint the legislature is in, to act within Article 40.3.3°, specifically as interpreted by the Supreme Court in Attorney General v. X. Reading the judgment, which includes extracts from the oral proceedings, it did seem clear to me from a number of instances that the girl in question had entertained serious thoughts of suicide, but it also struck me that it was not primarily on that condition of suicide ideation that John Rogers, representing X, made his defence. It was on her more general case and circumstances that he made the case against an injunction preventing her from travelling to England to obtain an abortion.

This effect then reinforces for me a need for a referendum to remove Article 40.3.3°. This bill, and what I believe to be a generally unsatisfactory position, is within that provision.

Removing this Constitutional provision would not introduce abortion; it would rather remove the constitutional prohibition on doing do. I do not imagine that any likely government in the near future would introduce a liberal regime, but it would be a matter for Dáil debate and party negotiation as it is in most other countries. The Oireachtas would have the freedom then to consider various provisions, and review and revisit these laws after perceiving their application.

Outcome of the abortion bill

The Heads of the Protection of Life During Pregnancy Bill seem to fulfill minimal requirements of legislation in line with the ruling in Attorney General v. X.

In the wording of the first paragraph of Article 40.3.3°,

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.

there are two clauses that the government had to consider in drafting this legislation, ‘equal’ and ‘as far as practicable’. It also had to be considered the ruling of the Supreme Court that ‘the risks to the life of the mother which should be considered by the Court included a real and substantial risk that the mother might commit suicide’.

In all cases, the meaning of Constitution is what the Supreme Court says it is. Article 34.4.5°–6° is itself explicit in this regard. Their ruling in 1992 meant that a risk of suicide has been grounds for abortion, not just from that date, but from the insertion of 40.3.3° into the Constitution in 1983. A doctor could have taken it upon themselves to administer an abortion in response to a diagnosis that there was a real and substantial risk that a woman might commit suicide. This legislation does not grant or remove additional rights to either the mother or the unborn; legislation tightly within the framework of Supreme Court interpretation of the Constitution cannot do this.

It may not have been the only measure permissible; someone might reasonably ask whether the government’s defence in D. v. Ireland, that there could be a recourse under Irish law for a termination in the case of fatal foetal abnormalities, could have been included in this bill. There might also have been flexibility in terms of the nature and composition of panels in the bill.

There will be some members of Fine Gael who break ranks to vote against this. The debate in the coming weeks will show how many they are, but I expect that the bill will come into law in a form not that far from this.

I do not expect that without further constitutional amendment, this bill lead will lead to more than a minimal increase in the number abortions performed in Ireland. Unlike measures in Britain and California from 1967, this bill refers only to situations that threaten the life, as distinct from the health, of the mother. It is not a small thing for a woman to declare that she is suicidal, and it is not something that the medical system takes lightly. The consequences for her personal freedom after such a declaration would be such that for many women seeking to terminate their pregnancy, travelling to Britain would be a preferable outcome.

While campaigners against abortion have resisted legislation in line with the X Case till now, and sought to amend the constitution in 1992 and 2002 to overturn it, I would expect that to largely die away as a focus, given the small scale of the change. Similarly, while legislation for the X Case has served as focus point for those seeking for more widespread access to abortion, that will shift to an amendment to remove 40.3.3, as advocated this week by Labour Cllr Jane Horgan-Jones, which would make legislation on abortion a matter for the Oireachtas, and not a constitutional matter. However, I cannot imagine that referendum occurring for quite some time.