Ms Mary O'Toole:

Good afternoon to the members of the committee. I do not have a paper prepared, unlike my co-speakers. I will speak to the committee on the subject that I was asked to address.

I hope this is helpful and if it is not, please stop me. I gather I have ten minutes. I am not known for my brevity but we will do our best.

I have practised in the area of the application of the eighth amendment and I understand that the committee would like an idea of the practicalities and how the courts balance rights in cases concerning the eighth amendment. The long and the short of this is, on the substantive issue of the life of the mother versus the life of the foetus, if I could put it in those extremely crude terms, that balance has already been struck by the Supreme Court in the X case and that test, decided by the Supreme Court in 1992, is still the test that is applicable in any case where the right to life of the unborn is in any way in conflict with the right to life of the mother. The important point to note about that provision is that all one is doing is balancing a life with a life. One is not balancing a life with health, welfare or any of those matters. One is balancing a life with a life.

The amendment specifically states these are equal rights. It is the equal right to life of the mother. If one has two beings with equal rights to life, how does one balance that? That is exactly what happened in the X case. In the X case, the argument before the court was, first, the unborn has a right to life, the mother has a right to life and one can only intervene to save the life of the mother if the mother is facing certain or inevitable death. Therefore, if she suffers from a condition that will result inevitably in death or imminent death then one can intervene but anything short of that did not permit an intervention. That was the argument made by the State.

In the High Court in X, the High Court judge stated there was a threat to the life of the young Ms X, who was 14 at the time, but the threat to her life is nothing compared to the threat to the life of the foetus if the judge does not grant the order - the High Court judge was asked to grant an order preventing Ms X from travelling out of the jurisdiction to avail of an abortion. If the injunction was not granted, then there is a certainty that the foetus will die whereas it may or may not be the case that the mother would die - there is not absolute certainty about her death.

The Supreme Court looked at that test and decided that it, in fact, did not vindicate sufficiently the right to life of the mother. In deciding how it would do that it was, in the first instance, urged by counsel on behalf of the young woman that the real test was if there was a real and substantive threat to her life and not if there was an imminent certainty of her death, and it did not matter how that threat arose. Whether it arose from some kind of physical illness or whether it arose from a threat of self-destruction, if that was a real and substantive threat, that was sufficient. That was ultimately the test that the Supreme Court adopted, while making it clear that it was a threat to the life, as distinct from the health, of the mother.

How did the court do that? How did it decide that the threat to the life of the mother was sufficient? What it did was to look at the Constitution as a whole. It looked at the social function of women and girls and the sort of constitutional rights that pertained, and it stated it was important. It is interesting, when one looks at the judgments, most of the judges regard themselves as harmonising constitutional rights and not deciding on a priority of rights. They looked at girls and women and their interaction with other parties. This was a young woman who was there with her parents. She had a relationship with her parents. They had a relationship with her. She had certain social functions. They took that into account.

It is most clearly explained in the McCarthy judgment where he says the woman is the "life in being", the unborn is the "contingent" life and everything depends on the life of the woman in being, and one looks at her role and one looks at her function within society. It is acknowledged in the McCarthy judgment that it is always going to be the case that the foetus would face certain death because the choice is abortion or not abortion, and that is not the basis on which one approaches the test. One looks at the substantive threat to the life of the mother, one evaluates that, and if there is a real and substantive threat to her life then she is entitled to avail of abortion. That is the only case that actually determines the test where one has that kind of situation.

Since then there has been a remarkable paucity of judgments concerning it. It has not arisen that anybody has brought a case before the court to look at that test again because, of course, the Supreme Court was saying no constitutional interpretation is ever immutable for all time. It simply has not arisen. What one has is the application of that test and-or a consideration of the right to travel because, one should remember, when X was decided there was no right to travel. In fact, one of the discussions in X is not only whether one is entitled to an injunction preventing this young woman from travelling, but whether one is entitled to an injunction at all on the basis of whether she has a constitutional right and should her life be vindicated, and in those circumstances whether there is a right to an injunction preventing her from availing of abortion services. That was the first question.

The second question was can one grant an injunction against a person in these circumstances if the person is simply going to travel to another jurisdiction to avail of a service that is lawful in the other jurisdiction. The Supreme Court did not come to a binding determination on that point but the majority indicated that their view would be that one could grant an injunction. Two of the judges took the view that one could not and the other three stated that one could grant an injunction in those circumstances.

After the X case, there was a further referendum which introduced the right to travel as an independent right in the Constitution. Subsequent cases, after X, also looked at the right to travel aspect of it. Am I over my ten minutes?