The Protection of Life During Pregnancy Act 2013 was recently signed into law. Its provisions were debated at great length in the media and in the Oireachtas. However, the public discourse on whether all aspects of the proposed legislation were constitutionally sound was far from comprehensive.
There was very limited scope for public discussion not concerned with suicidal ideation. In a legal system in which legislation must comply with all aspects of the Constitution to be valid, the debate left a lot to be desired.
In recent days it has been reported that the board of governors of the Mater hospital plans to meet to formulate its position on the hospital’s inclusion in the Act as a centre for the performance of terminations. Two members of the board have indicated publicly that they feel that the legislation conflicts with the religious ethos of the institution.
This could herald a constitutional challenge to the Act on the basis that it violates the freedom of religion of the owners of the hospital, the Sisters of Mercy. The Act also designates St Vincent’s hospital, which is owned by the Sisters of Charity, as an institution at which abortions are to be performed.
During the passage of the then Bill through the Oireachtas, I wrote an article for a Sunday newspaper which flagged the possibility that the legislation would be open to constitutional challenge for including these two institutions.
The constitutional case law of the Irish courts emphasises that religious institutions, even if publicly funded, may not be forced to act in a manner which conflicts with their ethos. The fact that the pregnant woman has a constitutional right to a termination in certain circumstances does not necessarily mean that that right would trump the very strong constitutional right of an institution to freedom of religion.
This is especially so if there is sufficient time to safely transfer the woman to a State-owned hospital to terminate her pregnancy, which would generally be the case when the risk of suicide, as opposed to a physical medical emergency, is in issue.
Importantly, terminations on the suicide ground appear to be particularly problematic for institutions with a Catholic ethos. The central point of my article was that the legislation had emerged from a lengthy and fraught process, and was now at risk of being condemned as unconstitutional.
The removal of two Catholic hospitals from the list of 25, to ensure compliance with the Constitution, would not affect the object or efficacy of the legislation as a whole.
Force of will
I circulated my newspaper article to a number of Senators I perceived to be independent-minded. Some ignored the email. A number said they were not constitutional lawyers and did not know. Others said there was no point raising the issue as the Government was determined to pass the legislation without amendment.
Somewhat bemused, I emailed my article to the Office of the President.
I was informed that the article would be added to the file relating to the legislation. The President subsequently convened the Council of State to seek non-binding advice on whether he should refer the Bill to the Supreme Court to determine its constitutionality. He then exercised his discretion in favour of signing the Bill into law rather than referring it. This decision was regrettable.
There is a compelling case for a reference to be made in situations where the legislation in issue will regulate controversial and critical aspects of people’s lives, such as life, death and intimate relationships, so that there can be no uncertainty about the legal status of anything done pursuant to the legislation.
As well as clarifying the issues of suicide as a ground for termination and religious ethos in the abortion context, the court might have provided useful guidance for the future on the permissibility or otherwise of legislating for abortion in the case of rape or fatal foetal abnormality.
Our relationship with the Constitution needs to mature. Public agencies must play their part in educating and informing the citizen on this crucial dimension of our national life.
At present, the Constitution uploaded on both the websites of the Department of the Taoiseach and the constitutional convention does not include the new article 42A on children's rights, inserted into the Constitution by the people last November.
Legislators need to engage with those making constitutional law arguments. Governments need to stop treating the advice and scrutiny of the Attorney General as infallible. We need meaningful dialogue on the constitutional ramifications of proposed legislation.
Mark Coen is a lecturer in law at Durham University