Dr. Maria Cahill:

To start with something that must not have been clear in my presentation, I am not saying that the X case is a flawed decision. I am saying it is a non-decision on the question of whether suicidality can be treated by abortion. The court did not hear arguments on that point and it did not make a decision on that point. I am not saying it made a mistake; I am saying it did not decide. That is the first point.

I thank Senator Colm Burke and Deputy Ó Caoláin for taking the time to look at the written submission as well as my oral comments, and for the question that Senator Colm Burke raised on the reasonable opinion of the psychiatrist. Now, with the heads of Bill, the Minister is adding in three medical experts. What I want to draw to the attention of the committee is that in the X case the expert, who in this situation was the psychologist, stated that he would not leave that girl alone and the court decided the opposite, that she should have an abortion. In the Cosma decision, the two psychiatric reports stated there was a strong possibility this woman would committ suicide and the court disagreed, stating it thought the real and substantial risk to her life had not been established. What happened there on both occasions is that the court has found the opposite of what the expert has found. One matter on which one must be careful in the definition of reasonable opinion is the fact that the legal test laid down in the X case was to be determined at law whereas in the heads of Bill one is only determining that as a medical question which means that there is also a constitutional vulnerability and a professional vulnerability for psychiatrists who would make determinations of that kind. I thank them for raising that.

I did not discern a question from Deputy Eamonn Maloney for me. Deputy Fitzpatrick asked is there an obligation to legislate. To take it back to the start, what the Constitution does is give Members an enormous privilege. One of the matters that this debate is about is the role of the Oireachtas. It gives Members an enormous privilege to legislate. What the Oireachtas is bound to do is legislate within the terms of the Constitution. Sometimes what comes up in the rhetoric is that the Oireachtas is bound to legislate for the X case, even though the X case, as I stated, did not decide the question of whether suicidality could be treated by abortion, and the Oireachtas is bound to decide by reference to the two referenda that were failed. The Oireachtas is not obliged to legislate for what the people did not put into the Constitution. What the Oireachtas is given is the possibility and the constraint that is on the Oireachtas,is the Constitution, and fundamental to that constraint in this situation is Article 40.3.3°.

On Senator Bacik's questions, of course, I am not saying that the Cosma decision is of relevance to the X case because that would be time-travelling. On the other hand, in the High Court, Mr. Justice Hanna, in the Cosma decision, decided that the X case was highly relevant to his determination. He used it verbatim. He analysed the different elements of the X case test very rigorously. What I am saying is that the Cosma decision has built on the X case and now it is relevant as the Oireachtas goes forward to legislating in respect of the heads of this Bill.

Finally, on the question of what is my concern about children under head 4, I think everybody under head 4 is vulnerable. All of those who will come under head 4 will be vulnerable persons. We should be concerned about all of them, both over 18 and under 18.

On the last question on advocacy rights,-----