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.
What looks like the beginning of open warfare ensued in the Republic of Ireland yesterday with the announcement by the Coalition government there that it is going to prepare legislation for “limited” abortion in the State. In the aftermath of the announcement, the four Catholic Archbishops have issued their strongest ever condemnation of abortion as a moral evil. Meanwhile another bishop describes the proposal as the “first step on the road to a culture of death”. The main government party in the Coalition is also divided on the proposal.
The legislation is seen by all pro-life groups in the country as the first step towards abortion on demand in that the threat of suicide is being accepted as a ground for granting an abortion. The pro-abortion activists and those who support the proposed legislation – even though they say they are not pro-abortion – are failing to answer the question why these grounds for abortion will not lead to abortion on demand as it has done so in all other jurisdictions where it has been introduced.
Currently abortion in any form is prohibited by an act of parliament. This ban was confirmed as the will of the people in a constitutional referendum in 1983 which prohibits legislation to introduce abortion. This provision, however, was compromised by a judgement of the Supreme Court in the 1990s when it ruled that a woman threatening to commit suicide had a right to have an abortion since this was taken to be a threat to her life.
That judgement has been heavily criticised by psychiatrists who consider that threats of suicide are far too complex to be made the basis for a decision to end the life of an unborn child – even if that were ever to be considered a morally defensible act.
The Taoiseach (Prime Minister) Enda Kenny and his senior Ministers are planning to reassure members of his party that allowing the threat of suicide as a ground for termination will not lead to abortion on demand. He has not, however, offered any kind of coherent reasoning to back up this assertion.
Minister for Health James Reilly last night said that “legislation supported by regulations will inform us to ensure that suicide will not be abused as it is perceived to be in other jurisdictions”. He has given no clues as to why pro-life campaigners should not consider this as any more than wishful thinking.
Irish radio reported him as saying that the legislation would have to cover suicide as the Supreme Court had been very clear in its judgment on the issue. He would try to create as much consensus as possible on the issue and hoped the legislation would be passed before next summer if not sooner.
Dr Berry Kiely of Ireland’s Pro Life Campaign said if the threat of suicide is included in any legislation to give legal clarity on abortion it will radically change medical practice in Ireland and the Irish legal system. Speaking on Irish radio Dr Kiely said it would introduce, for the first time, the direct and intentional killing of the unborn into Irish law.
She said there was a difference between medical treatment, which may result in the death of a foetus, and abortion, which is intended to end the life of the unborn. “This is where the whole issue of suicide comes into it, because a woman who says she’s suicidal because of being pregnant with this baby, what she’s saying is she doesn’t want a living baby at the end of this procedure,” Dr Kiely said. “You’re actually, in that situation, proposing to directly and intentionally ensure the death of her baby. That’s a very radical change for medical practice in Ireland, for our legal system, for whatever.”
The Government statement yesterday did not mention the matter but it is accepted that the grounds for a legal termination will include the risk of suicide or self-destruction. The legislative scheme will not, however, incorporate, or make legal, abortion in other in extremis situations, such as rape, sexual abuse, or rare fatal foetal abnormalities. However, the admission of legitimacy on any grounds – and particularly on grounds as open to manipulation as a threat of suicide – is seen as the thin end of the wedge to bring abortion on demand to Ireland.
Minister for Communications Pat Rabbitte has said he is surprised by the vigour of the language used by the Archbishops statement. However, he has not on this occasion suggested that the representatives of the Catholic Church had no right to speak on a matter like this. The Bishop of Kilmore, Leo O’Reilly, said that the Government’s decision to introduce legislation and regulations on the abortion issue is the “first step on the road to a culture of death”.
The four Archbishops in their statement encouraged “all to pray that our public representatives will be given the wisdom and courage to do what is right”.
They state categorically that “If what is being proposed were to become law, the careful balance between the equal right to life of a mother and her unborn child in current law and medical practice in Ireland would be fundamentally changed. It would pave the way for the direct and intentional killing of unborn children. This can never be morally justified in any circumstances.
“The decision of the Supreme Court in the ‘X’ case unilaterally overturned the clear pro-life intention of the people of Ireland as expressed in Article 40.3.3 of our Constitution. To legislate on the basis of such a flawed judgement would be both tragic and unnecessary.
“The dignity of the human person and the common good of humanity depend on our respect for the right to life of every person from the moment of conception to natural death. The right to life is the most fundamental of all rights. It is the very basis for every other right we enjoy as persons.
“The lives of untold numbers of unborn children in this State now depend on the choices that will be made by our public representatives. The unavoidable choice that now faces all our public representatives is: will I choose to defend and vindicate the equal right to life of a mother and the child in her womb in all circumstances, or will I choose to licence the direct and intentional killing of the innocent baby in the womb?”
The government parties have declared that in the vote on this issue – when it comes to a decision on legislation – will not be a free vote. On this also the Archbishops had strong words on the moral implication of such a ruling. “Moreover,” they said, “in a decision of such fundamental moral importance every public representative is entitled to complete respect for the freedom of conscience. No one has the right to force or coerce someone to act against their conscience. Respect for this right is the very foundation of a free, civilised and democratic society.”
The husband of the late Savita Halappanavar says he would welcome any legislation that would prevent another death in the circumstances in which his wife died. Mrs Halappanavar (31) died in Galway University Hospital in October. She was found to be miscarrying her 17-week pregnancy. This sad case has provided a very emotional context to the legislation issue although this proposal to legislate has been on the agenda of the Government since a negative European Court ruling in 2010. However, there is no confirmation that Mrs. Halappanavar’s death would have been prevented had he baby been deliberately killed by the medical team dealing with her miscarriage. Praveen Halappanavar has said she was repeatedly refused a termination. No corroborating evidence of this has come to light as yet. The report of two investigations on what actually happened in the days leading to her death are currently awaited.