Five issues could prompt referral of abortion legislation to Supreme Court
President Higgins may decide to refer Bill for ruling on its constitutionality
However this fails to take proper account of the guarantee of religious autonomy in article 44.2.5. At the same time, this guarantee is also not absolute and so it may be that in emergency cases, where there is no alternative, a Catholic hospital might be required to provide abortion facilities if that was necessary to save the life of the mother.
Third, objection might be raised to the fact that chapter 2 of the Bill, allowing the mother to seek a review of an initial decision to refuse permission for an abortion in non-emergency cases, does not equally provide for a review of an initial decision to authorise an abortion. On the face of it this failure to afford equal protection to the right to life of the unborn seems contrary to the principle that its right to life is equal to that of the mother.
That said, where an abortion is initially authorised it follows that there is a risk to the life of the mother and the court would have to consider whether it would be practicable, in such circumstances, to delay the abortion for a period of up to 10 days, the period allowed for the review in the Bill.
Penultimately, it has been argued by some that, as currently drafted, the Constitution permits an abortion in the case of a fatal foetal abnormality. If this is correct then the failure of the Bill to regulate such cases might be considered to be an unconstitutional omission.
However the right to life vests in the unborn once implantation has taken place and so it does not seem possible to argue that a foetus with a fatal abnormality is not an “unborn” for the purpose of article 40.3.3 given that a diagnosis of fatal foetal abnormality can only be made some time after implantation.
In addition it is difficult to find support for the view that the right to life of the unborn is contingent on the prospect of enjoying an independent existence outside the womb in the actual text of article 40.3.3. Consequently, I would argue that the failure of the Bill to address this situation is not unconstitutional.
Finally, some have suggested that the X-case is not actually a binding authority for the proposition that there is a right to an abortion where the mother is suicidal because of the pregnancy. Thus it is not beyond the bounds of possibility that lawyers challenging the Bill could argue that section9 providing for abortion where the mother is at risk of suicide is unconstitutional.
Gerry Whyte teaches in the school of law, Trinity College Dublin