Dr. Maria Cahill:

Good afternoon. I am delighted to be here and I thank the Joint Committee on Health and Children for its invitation to be a witness before the members today. My interest in the legislation is as a constitutional lawyer who works on the institutions of Government, separation of powers and, in particular, on the relationship between national law and supernational or international law. I am also keen to ensure, as we all are, that the fundamental rights guaranteed in the Constitution are upheld and vindicated fully. All of us come to this question from different perspectives with different professional expertise to offer as well as different personal experiences, but as a constitutional lawyer speaking to the members as legislators, our Constitution is our common ground and the starting point for this conversation and discussion today.

It is a Constitution that is uncompromising in its defence of human life. According to Articles 40.3.1^o, 40.3.2^o, 40.3.3^o, 15.5.2^o and 28.3.3^o, the direct and intentional taking of a life is prohibited. The Constitution prohibits the taking of innocent life but it also prohibits the taking of guilty life by banning the introduction of the death penalty in the strongest possible constitutional terms. If we were to assess the compatibility of this legislation simply with the text of those articles of the Constitution, it would be very difficult not to conclude that head 4 is unconstitutional. That is because it targets a specific subset of those who are guaranteed a right to life under the Constitution and makes the direct and intentional taking of their lives permissible under certain circumstances. A court faced with that kind of scenario would apply a proportionality analysis, examining the legitimacy of the infringement on the right in question in the light of the rationality of the means chosen to pursue that infringement. Head 4 would fail parts 2, 3, and 4 of the test for failing to choose a means that is rationally connected to the ends sought, for failing to impair the right as little as possible, and for being disproportionate to the ends.

The genesis of head 4 is not to be found here in Leinster House but rather in the Four Courts in the decision of the Supreme Court in the X case. In seeking to uphold the Supreme Court decision, head 4 succeeds in replicating the conditions of the test laid down in the X case. Where there is a real and substantial risk to the life of the woman which can only be averted by abortion, reading head 1 in conjunction with head 4, we find that human life can be ended at any time following implantation until such time as it has completely proceeded in a living state from the body of the woman.

In its detail, the legislation is faithful to the test laid down by the X case. It appears, however, not to be cognisant of the fact that there has been a development in the X case test in later cases that deal with suicidality. One of those is the 2006 case of Cosma v. Minister for Justice in which a woman sought that her deportation order be quashed on the grounds that if she were to be deported, she would commit suicide. The Minister refused to allow her to stay even after he had seen two psychiatric reports that detailed the strong possibility that she would commit suicide, and the court upheld the Minister's decision. In this case the High Court adopted and developed the test from the X case of real substantial risk to life in a decision that was not overturned by the Supreme Court.

There are three important findings from that case to which I want to draw the members' attention. The first is that the High Court held that the absence of a treatment plan for a presenting psychiatric condition and the fact that a person was not undergoing therapy for counselling are relevant factors in determining just how real is the real and substantial risk to life. Second, the court held that the fact that a claimant has not seriously considered another option and has not considered removing the risk to life by treatment or by some other means is relevant to considering whether the risk can really only be averted by the means she prefers. Third, the Minister, the Minister for Justice and Equality in this case, was entitled to take into consideration arguments of public policy. He had argued very strongly in submissions that he should be allowed to take into account that "to permit the threat of suicide to act as a stop on the execution of administrative decisions, such as deportation, would be to open a Pandora's box of potential abuse with possible effects of paralysing administrative activity in any given area of Government".

On the basis of the Cosma decision's reading of the Xcase test, head 4 would fail to meet the necessary standards because it basically violates those three findings that I mentioned. It does not require evidence of a treatment plan, it does not require that there should be serious consideration of other means to end the risk to life, and it does not take into account, as the Minister had insisted we should, the arguments of public policy that would lead to an opening of a Pandora's box which would, ultimately, if carried to the extreme, undermine the rule of law.

The first point I am making, therefore, is that head 4 is out of line with the recent developments in the X case test in the Cosma decision from 2006.

Turning now from the detail of the test to the principle behind the test, head 4 is premised on the principle that abortion is legally permissible in a case of a threat to life by suicidality. At this point I am sure there is not one member who is not aware that the judges in the X case did not hear psychiatric evidence. They heard evidence given by one clinical psychologist with six years experience in child psychology who met the young woman at the centre of the case on one occasion and who, according to his testimony, had never dealt with a situation like this before. None the less, when he was asked in Question 78: "Is it your professional view that she would destroy herself if matters continue as they are?", his answers was, "I would not have taken it on myself to leave that girl alone". Later he said, "My recommendation would be she was not safe unless under supervision". He did not argue in his evidence that abortion was an appropriate treatment for her suicidality. As members know, the court did not hear any psychiatric evidence to that effect, and the court also did not hear any legal arguments on that question. What happened was that counsel for the Attorney General conceded that point and therefore all medical, legal and public policy arguments one could make either for or against the proposition were not given consideration by the court.

Going back to an earlier precedent, in the 1965 case of the Attorney General v.Ryan's Car Hire Ltd, the Supreme Court held that where a point has been entirely overlooked, or conceded without argument, the authority of the decision may be weakened to vanishing point. As members know, the doctrine of precedent is central to the operation of our legal system and any legal system but it is central to that doctrine that the court must rule on the question. If the point has been conceded, it is not part of the decision of the court. If something is not argued by counsel before the court, it cannot be held by the court. The precedential value of the X case, therefore, as an authority for the proposition that it is legally permissible to allow abortion in the case of suicidal ideation is weakened to vanishing point, according to the Supreme Court. This point, which is not my idea, and I believe the members have heard it already this morning, was made in 1992 by Mr. Justice Brian Walsh who served as Supreme Court judge for 29 years. I posthumously promoted him to Chief Justice in my written submission but he was the greatest Chief Justice we never had.

Many members have heard many times, as I have, that they are compelled to legislate for the X case but there is no theory of precedent that supports that rhetoric. I hope I have expressed these points clearly to members. I am happy to take questions at the appropriate time but, in summary, my two messages for members are, first, that head 4 is not faithful to the recent developments of the X case test in the Cosma decision and, second, that members are not legally compelled to legislate for a principle that has been conceded at law. The members are not impotent. They have a choice and, above all, they have a duty and a responsibility to legislate to uphold the Constitution and respect the human right to live.