Attorney General should have role in vindicating rights of unborn
It is the AG’s duty to guard constitutional rights and to initiate action to vindicate such rights
Eamonn Barnes: “It would seem appropriate . . . that the Attorney General would be the person to ensure that the constitutional right to life of the unborn, who cannot assert it on its own behalf, should be vindicated at all stages of the proceedings under the Bill if and when enacted and to initiate any application for judicial review which might appear appropriate.” Photograph: Bryan O’Brien
I am concerned here with one issue only – whether the terms of the Protection of Life During Pregnancy Bill 2013 as published are consistent with the Constitution and in particular with article 40, section 3, subsection 3.
I am not addressing any of the issues which have arisen and been the subject of public controversy since the enactment of the subsection and the delivery of the various judgments in the X case.
For the purposes of this article I am proceeding on the basis that legislation to regulate medical practice and clarify legal issues following the X case judgments is required and that the Bill represents, in the considered view of its proponents, the best available vehicle to achieve such regulation and clarification. In a further attenuation of the scope of this study, I am assuming and believe that the Bill is indeed the best attempt possible to achieve such regulation and clarification in cases falling within the purview of sections 7 and 8 of the Bill – risk of loss of life from physical illness and physical illness in emergency. I am concerned only with cases coming under section 9 – risk of loss of life from suicide.
There is an immediate and obvious essential distinction between cases arising under sections 7 and 8, on the one hand, and cases arising under section 9, on the other hand. Issues which will, sadly but unavoidably, arise under the former category would be issues of objectively ascertainable physical fact, however difficult such ascertainment would in many cases be for the medical practitioners involved. They are peculiarly suitable for professional resolution by such practitioners. While psychiatric expertise would no doubt be of assistance in ascertaining the reality of a claim that a woman is suicidal because of her pregnancy, it could scarcely be asserted that such expertise is peculiarly or exclusively appropriate for the resolution of such a claim. Obviously this would be particularly true of a case where a woman would make a spurious or dishonest claim of suicidal ideation for the purpose of obtaining a termination of her pregnancy under the provisions of the Bill if enacted in its present form.
Under the Constitution, and in particular article 40, a pregnant woman’s right to life, like that of all others, must be vindicated by the State and its laws. Such a woman has a facility not available to the foetus, the facility to assert her constitutional rights. It could, and no doubt will, be argued that the provisions of sections 9 to 14 of the Bill constitute protection for the constitutional right to life of the foetus. It is necessary to consider if those provisions do in fact constitute such protection, and if they do, whether such protection is adequate and whether the provisions comply with the requirements of article 40, section 3, subsection 3, particularly but not exclusively because of the absence from them of any mechanism for the assertion on behalf of the foetus of its constitutional right to life corresponding to the facility available to the woman.