Mr. Frank Callanan:

No psychiatrist gave evidence in the X case. The single judgment of the Supreme Court of the then Chief Justice, Mr. Justice Hamilton, given on an Article 26 reference, specifically affirmed the correctness of the decision in the X case. There has never been the slightest suggestion that the X case was wrongly decided. Moreover the State has itself elected to rely on the X case in resisting challenges brought against it under the European Convention before the European Court of Human Rights. This is particularly true with regard to the argument successfully advanced by the State in D v. Ireland that the applicant had failed to exhaust her domestic remedies. This entailed the State arguing, as it did based on the opinion of counsel, that there was at least a tenable argument that a foetus suffering from a fatal abnormality was not an unborn for the purposes of Article 40.3.3° or that even if it was an unborn, its right to life was not actually engaged as it had no prospect of life outside the womb. Of course it goes further than this.

Constitutional amendments which sought to exclude suicide were rejected by the people in 1992 and 2002. In 1992 in rejecting the exclusion of a risk of suicide the people adopted the 13th amendment which provided that Article 40.3.3° did not limit freedom to travel and the 14th amendment which provided it did not limit freedom to obtain or make available information relating to services lawfully available in another state. The 13th and 14th amendments can be seen as responses by the people to the facts of the X case and to the judgments of the Supreme Court. The judgment of the Supreme Court in the X case is to this extent not merely something that is established in law; it is woven into the fabric of modern Irish democratic politics. The reason this is a point of importance which is necessary to emphasise is there is a concern, and the committee can see the reality of this concern from what we have just heard, that behind the argument, which I struggle to comprehend, that legislation of the character contemplated in the heads of the Bill is not necessary, lies a mute refusal to accept the position in Irish law as enunciated by the Supreme Court in Attorney General v. X and Others that the X case is part of the Irish constitutional acquis.

There are several dicta in case law which illustrate the difficulty of leaving a lacuna in Irish legislation. In A and B v. Eastern Health Board, District Judge Mary Fahy and C, Mr. Justice Geoghegan asserted it would be wrong to turn the High Court into some type of licensing authority for abortions. In A, B and C v. Ireland the European Court of Human Rights held the court does not consider the constitutional courts are the appropriate fora for the primary determination as to whether a woman qualifies for an abortion which is lawful in a state. In particular, this process would amount to requiring the constitutional court to set down on a case-by-case basis the legal criteria by which the relevant risk to a woman's life would be measured and further to resolve through evidence largely of a medical nature, whether a woman had established this qualifying risk. The court went on to state it would be equally inappropriate to require women to take such complex constitutional proceedings when their underlying constitutional right to an abortion in the case of a qualifying risk to life is not disputable.

I wish to comment on the heads of the Bill which will be dealt with in due course. The scheme of the Bill is conceptually conservative. It seeks to translate into legislation and give legislative effect to the decision of the Supreme Court in the X case without either widening the category in the X case or adding to the categories in the X case. It might appear a Bill which is so conceptually conservative and so restrictive is of little consequence in that it does not add to what is already established by the X case. I do not think this is right. It is not simply that it introduces a scheme which gives effect to the rights established in the X case. It is true we are obliged to legislate for the X case because of the decision of the European Court of Human Rights in A, B and C v. Ireland. The introduction of the Bill seems to be none the less a momentous event in the sometimes turbulent journey of Irish statehood. On the enactment of this legislation the rights enunciated by the Supreme Court are no longer external to, or divorced from, the Houses of the Oireachtas. The Bill achieves the repatriation of this fraught and deeply divisive question to where, subject to the Constitution, it primarily belongs.