Mr. Kevin Kelly:

On the comment on incrementalism, I did say that save for Fleming being overturned or there being a referendum, I do not believe incrementalism is an issue. A judgment has been provided in which it is stated that there is a very niche and narrow opportunity to introduce the healthcare in question for people in circumstances such as those of the late Marie Fleming. If in those circumstances that remains the status quoin terms of legal sources, I must ask whether incrementalism applies. If there is a very adequate balance to be struck based on the current Constitution and the current Supreme Court judgment, then there is a very limited margin of opportunity. If there is to be a case where the Supreme Court goes beyond that and holds that the law is unconstitutional, we will have to provide for it anyway. Therefore, I do not see it as an obstacle.

There might be a fear in this regard but in terms of an obstacle to implementation, that judgment means there is a very niche and narrow area to provide for a certain limited group of persons or circumstances that give a right to introduce assisted suicide. Once anything goes beyond that or the right to life becomes tarnished, the Constitution is already there. The Fleming judgment is already there, which states that the State has a positive obligation to uphold life.

Once the slippery slope onsets, any such loosening could be regarded as unconstitutional. If it were to arise that a case is made and is raised properly, as the Senator indicated, and if the court is to find in a subsequent case that it is unconstitutional, that means we will have to legislate for it because it means it is unconstitutional to have a blanket prohibition. Whichever way one looks at it, there is either going to be a limited set of circumstances provided for under the current regime or there is a case that is properly made and the Supreme Court overturns Fleming, in which case we will have to provide for it anyway because it is unconstitutional in respect of the 1993 Act. My point is that in circumstances where Fleming is the leading judgment and the Constitution still provides for the right to life, I think incrementalism is not a poignant fear. If the other case is to be made, then it might be considered that the 1993 Act is unconstitutional.