Judge Hugh O’Flaherty, a member of the Irish Supreme Court which handed down the judgement on the X-case back in 1983, seems to have pulled the rug from under the feet of Enda Kenny in an interview in today’s Irish Times. In the interview he ranks the judgement as little more than an obiter dictum from the judges.
This must put the onus on the Government to go back and look at its reasoning on the whole legislation issue again. If not then it seems inevitable that the constitutional case against the law the government is proposing to pass on Wednesday will end up facing a challenge in the courts which it would be very unlikely to survive.
“If the Supreme Court struck down an act as unconstitutional,”, O Flaherty said, then “that would be the end of that debate. There would be no two ways about it. But when it gives an opinion on a case, [and] that doesn’t work out as submitted to it, then it’s really an obiter dictum” – meaning that it is merely an incidental but not binding remark or opinion by a judge in deciding a case.
Asked if he thought the Government was obliged to include the suicide clause, he replied that this was not necessarily the case “for the reason that the case wasn’t as binding as a different type of case would have been”.
Judge O’Flaherty said In relation to the X case: “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 under the Constitution and the law.”
Judge Niall McCarthy said in giving judgement for the Court in 1983:
“Legislation may be both negative and positive: negative, in prohibiting absolutely or at a given time, or without meeting stringent tests: positive by requiring positive action. The State may fulfil its role by providing necessary agencies to help, to counsel, to encourage, to comfort, to plan for the pregnant woman, the pregnant girl or her family. It is not for the courts to programme society; that is partly, at least, the role of the legislature. The courts are not equipped to regulate these procedures.”
Judge O’Flaherty’s interview may well prove to be a turning point in the entire saga of this Government’s very confused efforts to bring in legislation for abortion. Certainly public representatives will have to examine the implications of what he has said and those who are backing the Bill with little or no reservation will have to burn some midnight oil on their decision. Otherwise they will run the risk of looking very foolish indeed in the months to come when the constitutional lawyers begin to get to work on it.