Five issues could prompt referral of abortion legislation to Supreme Court

As the Protection of Life During Pregnancy Bill 2013 comes before the Seanad, an issue now coming into focus is whether the President might decide, pursuant to article 26, to refer the Bill to the Supreme Court for a ruling as to its constitutionality.

Should he do so – and the decision is his alone though he is obliged to consult the Council of State beforehand – the Supreme Court will have to hand down its ruling not later than 60 days after the date of the reference.

If the court finds the Bill to be repugnant to the Constitution then it cannot become law. On the other hand, if the court upholds the Bill the President must sign it and its constitutionality can never again be challenged.

Should the President decide to refer the Bill to the Supreme Court this will be the second time that legislation dealing with abortion policy has been subjected to this procedure. In 1995 a Bill dealing with the provision of information about abortion services abroad was upheld by the Supreme Court.

In that case the court said that its function was to determine whether, from an objective stance, the provisions of the Bill represented a fair and reasonable balancing by the Oireachtas of the various conflicting rights in this situation and whether the Bill was so contrary to reason and fairness as to constitute an unjust attack on the constitutional rights of the unborn, the mother and any other person.

If the 2013 Bill is referred to the Supreme Court one would expect the same test to be used to determine whether it is repugnant to the Constitution.

Five possible issues could arise for consideration in this context.

First, the 2013 Bill as currently drafted does not impose any precise time limits on the availability of abortion. While in my opinion the Oireachtas could, consistently with the X-case, have legislated for time limits, so far it has chosen not to do so and some might consider that this fails to provide adequate protection for the life of the unborn.

However the Bill does make it a precondition for the legality of any abortion that the certifying medical practitioners must have regard to the need to preserve unborn human life as far as practicable, and this might be regarded as adequately vindicating the right to life of the unborn.

Second, there may be concerns about the limited protection afforded to the right of conscientious objection. Section 17 recognises that right in the case of medical practitioners, nurses and midwives but not other hospital staff. Moreover, even staff covered by section 17 who refuse to participate in an abortion must make arrangements to transfer the woman to the care of other staff prepared to carry out a termination.

It might be argued that this does not adequately respect the right of conscientious objection. As against that, this right is not absolute and so it is arguable that it could be curtailed in the interests of saving the life of the mother. The Bill is silent as to the position of institutions, as distinct from individuals, though some politicians have argued that publicly-funded hospitals could be required to act in a manner contrary to their religious ethos.

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