DUBLIN, Mar 8, 02 (CWNews.com) - Supporters of legal abortion are to press the Irish government to introduce legislation following Thursday's referendum defeat.
For the past 10 years, abortion has been legally available in Ireland when a mother's life is in danger, but in practice doctors were forbidden by the Medical Council to carry out direct abortions.
Current abortion law in Ireland is based on the decision of the Supreme Court in the X Case. The 14-year-old south Dublin girl at the center of the case had become pregnant in December 1991 as a result of a sexual assault by a middle-aged businessman. After reporting the crime to the police, the girl and her parents decided that she should have an abortion in Britain.
The family asked the police whether the aborted fetus could be tested to provide proof of paternity in any subsequent trial of the accused man. The matter was referred to the Director of Public Prosecutions. He, in turn, passed the buck to the Attorney General, who asked the High Court on February 7 1992 to prevent the girl going to England for an abortion.
At the hearing-- which was in private-- counsel for the Attorney General stressed the constitutional rights of the unborn child as approved by a October 1983 pro-life referendum. Article 40.3.3 of the Irish Constitution-- which remains in force after Thursday's vote-- says: "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."
A psychologist gave evidence to the court that, if the girl was forced to have the baby, "I feel she might commit suicide or decide to terminate it herself by throwing herself down the stairs or something like that." But despite the suicide threat, on February 17, the former President of the High Court, Mr. Justice Declan Costello, ordered the girl:
* not to interfere with the right to life of the unborn child; * not to leave Ireland for nine months; and * not to procure or arrange an abortion in any country.
The girl and her parents were already in England arranging for the abortion but, when told of the High Court order, they returned to Ireland.
An appeal was lodged four days later on 14 separate grounds. The girl's lawyers claimed that Costello was wrong to hold that he had the power to ban the girl's abortion, despite parliament's failure to pass any law reconciling the constitutional right to life of the unborn with the equal right to life of its mother.
The appeal also claimed that the judge was wrong to hold that the constitutional right to life of the unborn was "clear and unambiguous" and that the courts had an imperative duty to protect it. Another ground of appeal contrasted the mother as a "life in being" with her unborn child, whose life was said to be "contingent and putative".
The appeal was heard in private over three days on February 24, 25, and 26. The five judges gave their decision in public on March 5.
The sole dissenter, Mr. Justice Anthony Hederman, said that, "on the vital matter of the threat to the mother's life, there has been a remarkable paucity of evidence. In my opinion, the evidence offered would not justify this court withdrawing from the unborn life the protection which it has enjoyed since the injunction was granted."
But Chief Justice Tom Finlay, speaking for the majority, held: "The proper test to be applied is that, if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible."
Mr. Justice Seamus Egan agreed: "A pregnancy may be terminated if its continuance as a matter of probability involves a real and substantial risk to the life of the mother. The risk must be to her life but it is irrelevant, in my view, that it should be a risk of self-destruction, rather than a risk to life for any other reason."
Mr. Justice Niall McCarthy also said the High Court order should be set aside and pointed out that the girl could not be lawfully prevented from leaving the state, "whatever her purpose in doing so". He added that the failure of the legislature to provide for the regulation of Article 40.3.3 had "significantly added to the problem."
Mr. Justice Hugh O'Flaherty also voted to set aside the High Court decision, adding: "The legislators, when they come to enact legislation, must have due regard to the mother's right to life-- a right protected throughout the Constitution in any event. Until legislation is enacted to provide otherwise, I believe that the law in this state is that surgical intervention which has the effect of terminating pregnancy bona fide undertaken to save the life of the mother where she is in danger of death is permissible."
One matter overlooked by the judges was the question of any time limit on abortion. None of the five judges set any upper limit on terminations, which means that, in theory, abortions may be performed in Ireland right up until birth.
Following last week's result, lawyer Ivana Bacik of the Alliance for A No Vote said: "We are now calling on the government to legislate to implement the X Case judgment.
"We would like to see legislation laying down the criteria by which a 'real and substantial risk' to women's lives would be judged. Doctors already can and do perform terminations under the X Case judgment where there is a physical risk to the woman's life, but we would like legislation making it clear that they have an obligation to terminate where there is a risk of suicide and where the medical indications and woman's own wishes dictate.
"A time limit would presumably be contained in the legislation. My own view is that fetal viability should be the criteria, but my personal preference would be for that to be decided in each individual situation, as viability varies between different women.
"Under the legislation, abortion should be available in all hospitals. I would be strongly against any restriction on doctors' ability to perform life-saving terminations."
Currently, the only restriction on abortion is that imposed by the Medical Council, but following the referendum outcome, some medical professionals believe that situation is likely to change sooner rather than later.
Psychiatrist Professor Patricia Casey, who was a member of the Medical Council from 1994 to 1999, told Catholic World News: "During the referendum debate, all psychiatrists conceded that there are no absolute indications for abortion-- that is, there are no cases in which abortion is the only treatment that can be offered (although 10 psychiatrists sent a letter to the Irish Times saying that abortion might be part of a package of measures).
"But I think last week's decision has now opened the door to legal abortion in Ireland. There will be a softening-up process here and someone will suggest that we get rid of Article 40.3.3 of the Constitution. Within the next few months, I think the Medical Council will change its ethical guidelines to allow abortion in the case of suicide risk.
"In a few years, I predict that we shall be going the same way as Britain, where abortion is freely available up to 24 weeks, or up to birth in cases of fetal abnormality."
- Kieron Wood
Catholic World News Feature
8. mars 2002