Rónán Mullen (Independent) | Oireachtas source

What lies before us today represents the first attempt to enshrine in statute law the idea that some human lives are less worthy than others. It is an affront to the fundamental equality of all human beings and the pre-eminence of the human right to life. An Taoiseach claims that in proposing this legislation his book is the Constitution. In reality, it is Labour's way. It is that party's long-standing party policy that is being legislated for, not Fine Gael's pre-election commitment and certainly not best medical practice.

Ultimately, this Bill is not primarily concerned with clarifying necessary medical treatments available to women whose lives are endangered by complications in pregnancy. It does not offer a shred of further clarity on that point. The pre-existing legal and medical standard is simply restated in sections 7 and 8. The Bill merely addresses procedural clarity, not substantive clarity. Instead, the Bill's purpose lies in legislating for the X case where the intentional abortion of the child is contemplated. The only type of medical procedure contemplated is one "in the course of which, or as a result of which, an unborn human life is ended". No clarity or protection is offered by the Bill to a procedure whereby the child is delivered alive. No clarity is offered to medical professionals regarding civil liability arising from a neonate being disabled due to premature disability under section 9. Accordingly, clarity is a Trojan horse.

Orwell would have appreciated the Title given to this Bill. It obscures its contents and helps stifle critical and legally informed engagement. In reality, it is our first ever abortion Bill. As such it is a defeat for the human right which Article 40.3.3° seeks to protect, as well as for good, evidence-based medicine. Its motivation lies not in concern for clarity or protection but in expediency and abortion ideology. Bearing in mind that Britain has about 15 times our population but about 45 times our abortion rate -at a crude estimate we can say that it has three times our abortion rate - it is sadly clear there is an abortion culture in the western world. We should fear to go where Britain has gone but I fear that this legislation starts us along that road. It is no argument to say that those who might seek abortion under the suicide heading here might have gone to Britain anyway and that those children would not have lived. That is untrue. The law is an educator. The disparity between our abortion rates and those of Britain indicates there are people alive today in Ireland who would not have lived had abortion been legal. In the same way, we can say that children will die in the future who would not have died were it not for this law.

The Taoiseach, the Ministers and the Government should be thoroughly ashamed of themselves for bringing this cruel and corrupt legislation before us. I will exempt one former Minister of State from that criticism. I hope for their sakes that a day will come when they look back at deep regret at what they have done. That will be some small atonement for the lives that will have been lost or disabled, the hurt or regret in the lives of many women who will have undergone such abortions, the damage to social cohesion, the divisions within our medical profession, in people's hearts, within families and between men and women. If they do not regret their role in bringing these events to pass, that will be all the sadder reflection on them.

In pushing through this Bill, the Government is very keen to invoke the idea of legal obligation. However, we know that the A, B and C decision by the European Court of Human Rights, ECHR, did not require Ireland to provide for abortion on grounds of threatened suicide. That judgment required clarity for a cancer patient in ascertaining what treatment was lawfully available to her while pregnant. The Committee of Ministers of the Council of Europe, which oversees the execution of ECHR judgments, has repeatedly made it clear that member states have very significant discretion in determining how to fulfil their obligations under the convention. Where there is a will, there is a way. Where there is not a will, it is like this Bill.

In terms of our own constitutional law, there is simply no requirement that the Oireachtas legislate to give effect to a decision of a court. It is telling that proponents of the view that there is such a requirement have singularly failed to identify, either in the text of the Constitution or in constitutional jurisprudence, support for this requirement. So the Oireachtas has, as admitted by the former Justice Catherine McGuinness in this Chamber, the constitutional freedom to refrain from legislating for the X case. That is why John Bruton said, when he was Taoiseach, that he would not legislate for the X case because it would have the effect of bringing abortion into Ireland.

There are also those who argue that the failure of two attempts to overturn the X case by referendum means that a legal duty exists to legislate for that case. Yet in constitutional law the defeat of a referendum proposal does not create a legal obligation to give effect to the express opposite of that proposal. This is not to mention that a very significant proportion of the "No" votes in 1992 and 2002 referenda were cast from a pro-life perspective. So let us not flunk both the law and history exams simultaneously. Further still, former judge Hugh O'Flaherty of the X case majority recently conceded that judgment was not a legally binding precedent. Indeed, part of the reasons for this may be that abortion on psychiatric grounds was conceded without argument and, therefore, did not form part of the ratio of the judgment, notwithstanding the subsequent application of the X case test in High Court decisions, a point that has confused some people. Hence, not only is the Government not legally obliged to legislate for the X case, but the courts themselves are not legally bound to follow that particular judgment as a matter of stare decisis.

We should consider whether the proposed legislation is in line with Article 40.3.3° of the Constitution? To recall that guarantee: "The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right." The express language of Article 40.3.3° is absent from the present Bill. Instead, the Bill defines "reasonable opinion" as including "regard to the need to preserve unborn human life as far as practicable". There is no mention whatsoever of the equal right to life of the unborn or of respecting, vindicating or defending that right. The Bill merely requires that regard be had to the need to preserve unborn human life, a need immediately qualified through the addition of the clause "as far as practicable". Yet the constitutional guarantee that laws respect the right to life of the unborn is not so qualified. Further, a need to preserve life is a much more amorphous and much less legally established concept than a full-blown constitutional right to life. Thus the Bill grants a lesser level of respect to the equal right to life of the unborn than Article 40.3.3°.

There is a further equivocation in the Bill regarding the equal right to life of the unborn. The aforementioned reasonable opinion is not a reasonable opinion at all. It only requires an opinion formed in good faith. This means that the Bill requires a significantly lower standard of mental element than that of an objective reasonable opinion, which in turn greatly undermines the supposed safeguards offered by section 9, as well as the criminal provisions of section 22. Since the medical opinion need not take heed of relevant medical evidence and ordinary practice, the good faith test is also out of touch with the development of the tort of medical negligence from Dunne v. National Maternity Hospital onwards. It should also be noted that the entirety of the medical evaluation adheres to a good faith standard, including certification of a real and substantial risk to the woman's life. Further, and perhaps crucially, whether due regard is had to "the need to preserve unborn human life as far as practicable" is, according to the Bill, entirely a matter of subjective good faith. I cannot see how anyone could reconcile the Bill's provisions with the constitutional duty for laws to respect the equal right to life of the unborn - a duty framed in a categorically objective manner.

The subjective good faith standard pervading the Bill's provisions for medical assessments reflects the subjective grounds of suicidal ideation upon which the Bill provides for abortion. So in the complete absence of any empirical evidence that abortion makes women less suicidal, this Bill does not require that a medical opinion sanctioning an abortion on this very basis be based on anything more concrete than a subjective opinion. Imagine that.