Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I have been listening with great interest all day to this debate. When I was not in the Chamber I had it on in my room. A number of things strike me about it in the context of the amendments we are dealing with and going back to first principles might help. The first principle is that the X case involved a 14 year old rape victim who was suicidal. Many of those who oppose section 9 in the Bill have found it very difficult to refer to those facts. Concerning the rape victim who was 14 years of age, a psychologist gave evidence to the court, which was uncontroverted to the High Court, that she was suicidal and that if the pregnancy was not terminated she would take her own life. Disparaging remarks were made about the psychologist by my colleague, Deputy Peter Mathews. "Was he not qualified for only six years?" he asked. He may have been qualified for only six years but he was a qualified psychologist. In the case of some speakers, though in fairness to everybody who spoke, not all, the humanity this legislation is trying to address has got lost in legal jargon. Some of this jargon has gone beyond anything accurate. I will put it this way if I may - rhetoric does not make something that is inaccurate correct. It is important that is understood.

The X case was a seminal case to interpret Article 40.3. 3° of the Constitution and was a judgment I have written about academically and extensively. It was not a particularly complex judgment - it has been made to sound more complex than it is by some. Simply said, where there is a real and substantial risk to the life of the mother posed by pregnancy, the pregnancy can be terminated. Many people who are opposing this provision have focused on the life of the unborn and have said very little about the lives of women. I come from a perspective I know many people in this House share, where I regard the life of an unborn child as of extraordinary value. However, I regard the life of the mother as of equal value and I recognise that if the mother takes her life the unborn child will not survive. The unborn child's life is dependent on the life of the mother.

We have been subject to a lot of legal casuistry, what I describe as àla carte interpretations of High Court and Supreme Court judgments. Again I emphasise that rhetoric does not make what is said right when it is clearly and blatantly incorrect. What is incorrect about what has been said about the X case? We have been told a number of things about it, first that it is not a binding decision. As a lawyer who has practised for more than 30 years I can say the X case is a clearly set out decision of our Supreme Court that binds the lower courts in this State, and the Supreme Court, until such time as it might formulate a different view. I do not know on what basis anybody can say the X case is not binding.

The next issue is that we were told by former judge, Hugh O'Flaherty it was a rather exotic statement. I do not know whether he thought this through fully or whether he was accurately reported. We were told that because subsequent to the Supreme Court judgment in the X case the poor unfortunate 14 year old victim of rape suffered a miscarriage, in some way that made the five judgments, delivered in a 4:1 majority, what is described in legal parlance as obiter dicta, or a judgment which is not directly on the issue before the court. To fall into other legal jargon, the principle a court utters on the central issue before it is called the ratio decidendi. Obiter dicta is all about side issues the court has not been asked to determine, where judges make some comment about issues of indirect relevance which are not before the court. There was only one issue before the Supreme Court - where there is a suicidal pregnant victim of rape is it permissible to terminate the pregnancy if one accepts there is a real and substantial risk to her life? A majority, 4:1, of the Supreme Court answered that very simply with a "Yes". That particular rape victim suffered a miscarriage shortly before the termination was to take place but this does not, on any basis of legal interpretation, turn a decision of the Supreme Court, the central decision on the main issue before it, into something that is either irrelevant or a side issue that does not bind the courts in later cases. For any lawyer to say otherwise is grossly and serious inaccurate. For a former Supreme Court judge to suggest it is truly bizarre and inexplicable.

It is important to say this. We are told by some that the Supreme Court judgment was mistaken and that we can ignore it. Is that a principle we are going to adopt in this House to decisions we do not like delivered by the courts?

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