Failure to legislate on X case test may cost lives

Analysis:The Constitution has been definitely interpreted by the Supreme Court - now it is up to the Government to act

When Zhou Enlai was asked in the early 1970s about his assessment of the French Revolution of 1789, the Chinese leader famously replied that “it is too early to say”. This has always been considered the gold standard for excessive political caution. However it may soon have a rival as successive Irish governments continue to delay in dealing with the law on abortion.

The judgments in the X case were delivered over two decades ago but it appears that it is still too early for our politicians to say what the effect of those judgments should be on our law.

Judges both in Ireland and in Strasbourg have made it crystal clear that this legislative gap is not acceptable and breaches the right of citizens to know what is the law of land. It may be that the death last month of Savita Halappanavar at University Hospital Galway will do what no amount of judicial admonishment appears capable of doing, and finally spur the legislature into action.

What makes the paralysis all the odder is that in order to comply with its legal obligations the Government does not have to come down on one side or the other of the difficult and fraught debate as to whether our abortion laws should be narrower or broader. All it has to do is to legislate for the law as it currently stands.

In the X case of 1992, then chief justice Thomas Finlay stated 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, having regard to the true interpretation of Article 40.3.3 of the Constitution”.

Given that the Constitution has been definitely interpreted by the Supreme Court as providing for such a test, there can be little genuine controversy about the Government legislating simply so as to fill in the details of that test. These necessary details would include such matters as defining what constitutes a real risk to life and setting out how many medical opinions and what medical evidence are required to fulfil that requirement in a particular case.

If anyone thinks that the current wording of the Constitution is too liberal or too conservative as regards the right to an abortion, both of which are perfectly legitimate opinions to hold, then the appropriate remedy is to seek to amend the Constitution.

Legislative detail

However, failing to legislate for the X case test achieves nothing and potentially endangers lives since all it means is that we have a law that lacks the necessary legislative detail to permit anyone to know how to operate it safely in practice. The reason why legislation is necessary is because you cannot have a situation where a doctor standing over an operating theatre needs to consult over 50 pages of Supreme Court text spread out over five different judgments in order to work out what the law currently permits.

Instead there should be concise legislation that sets out in plain English when an abortion is and is not permissible pursuant to the X case test.