Failure to legislate on X case test may cost lives

Thu, Nov 15, 2012, 00:00

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.

Judges have not pulled their punches as regards what they think of this legislative paralysis. In the X case itself, Mr Justice Niall McCarthy stated that the failure by the legislature to enact the appropriate legislation following the 1983 amendment to the Constitution “is no longer just unfortunate; it is inexcusable”.

In the Roche case on the status of frozen embryos heard in 2009, Mr Justice Hardiman spoke in equally blunt terms and stated that the fact that difficulties were raised did not absolve the legislature from the obligation to consider the degree of respect due to fertilised embryos and to act upon such consideration “by its laws”.

There has been a marked reluctance on the part of the legislature actually to legislate on these issues: the court simply draws attention to this. That is all it can do. That is what Mr Justice McCarthy did, apparently in vain, in the X case 18 years ago. In the same case, Mr Justice Fennelly stated that, “It is disturbing, to use no stronger word, that some four years after publication of the Report of the Commission on Assisted Human Reproduction, no legislative proposal has even been formulated.”

In the 2010 A, B C case, the European Court of Human Rights found this lack of legislative action incomprehensible and noted with frustration that “the Government have not explained the failure to implement Article 40.3.3 and no convincing explanations can be discerned from the reports following the recent public reflection processes”.

Quite aside from moral considerations there are also cost implications of failing to legislate, since leaving it up to the courts to make up the law on a case by case basis inevitably incurs legal bills. Thus at the conclusion of the Roche case the Supreme Court ruled the Attorney General should bear the costs incurred by both the wife and her separated husband in arguing the case in the High Court.

Hard cases

It is said that hard cases make bad law and nowhere is that truer than in the area of abortion. In the X case the Supreme Court had to consider the case of a suicidal 14-year-old girl who found herself pregnant as a result of a rape. In the A, B C case in Strasbourg, one of the appellants was in remission from a rare form of cancer and had become pregnant.

It is far better for the Oireachtas to debate legislation in a calm and coherent manner rather than for courts to have to develop the law on a piecemeal basis in response to ad hoc emergencies and where understandable sympathy for the individual before the court may colour the debate on the issues. Under the separation of powers, it is the job of the Oireachtas to enact laws and of judges to interpret them.

Unelected judges are uncomfortable being placed in a position where they are left to create the law themselves without any legislative guidance and this discomfort is evident in a number of the judgments delivered in the X case.

James McDermott is a barrister and lecturer in the UCD school of law

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