This article appeared in the print edition of the Sunday Business Post on 23rd June 2013
Dr. Maria Cahill speaking to the Oireachtas Health Committee
Although the European Court of Human Rights specifically requested that Ireland provide legal clarity in relation to lawful medical treatments in pregnancy, the political rhetoric surrounding the introduction of the Protection of Life during Pregnancy Bill has been a model of legal obfuscation.
The government has been keen to emphasise that it is obliged to legislate to introduce abortion on the grounds of suicidal intent, and both the Taoiseach and the Minister for Health have, on countless occasions, presented this 'obligation' as deriving from law: from the Constitution or from the European Court of Human Rights or from the Supreme Court.
So long as this political rhetoric around legal obligation holds sway, frank debate about the terms and merits of the legislation is almost impossible. Indeed so long as this political rhetoric is unchallenged, there is no necessity for the minister to present the legislation as medically justifiable and legally legitimate; he can simply say that he has no choice.
Is the government constitutionally obliged to legislate for a Supreme Court judgment? No, as a matter of law. The Constitution gives permission to the Dáil and the Seanad to legislate, rather than imposing such an obligation on them. There are examples dating all the way back to 1965 of the Court establishing that various rights exist, only to have fourteen successive governments decline, in the lawful exercise of their discretion, to legislate to provide an express statutory footing for these rights. The only constitutional obligation is that legislation must remain within the terms of the Constitution. In this instance, the right to life protected in Article 40.3.3 must be fully vindicated.
Is the government legally obliged to legislate for a suicide-based exemption from the right to life because of the European Court of Human Rights ruling in the case of ABC v Ireland? No, as a matter of law. The Rules of the Committee of Ministers require that Ireland should adopt measures that are "effective for preventing the recurrence" of the breach that was found in the case of ABC v. Ireland. Applicant C, following an internet search, diagnosed that her cancer might return during her pregnancy, and then went to England to have an abortion. She was not suicidal. A suicide-based exemption from the right to life would not have clarified her legal position at all.
Aside from the fact that the Oireachtas is under no constitutional obligation to legislate for the X case, is a future court bound by that precedent to allow suicide-based exemptions from the right to life? No, as a matter of law. The X case is in a separate category of judicial decisions because of what it did not decide. As every first year law student learns, a precedent is only binding in relation to the points that were decided in the case.
All the points that were "entirely overlooked or conceded without argument" are not part of the decision, as the Supreme Court itself ruled in 1965. If a point is not argued before the judge, the judge cannot make a decision on that point, and there is therefore no precedent on that point. If it were to be otherwise — if precedents could be made based on what the judges did not decide in court — then we would not be living under the rule of law.
In the X case, the Attorney General did not contest whether abortion was an appropriate treatment for suicidality. That is why neither the High Court nor the Supreme Court heard any legal arguments or medical evidence on the question of whether suicidality should be treated by abortion. The point was entirely overlooked or conceded without argument and therefore, according to the Supreme Court, no precedent exists on that point.
Is the X case the most recent legal decision in the area of suicide-based exemptions from law? No, as a matter of law. In 2006, the Cosma case concerned a woman who threatened to commit suicide if she were deported. The High Court based its ruling on the test of "real and substantial risk" determined in the X case, but developed that test in important ways.
First, it required that the risk should be demonstrated in the context of an ongoing psychiatric relationship where the patient would receive counselling and all psychiatric treatment that she needed. Second, it held that she should demonstrate that all other avenues for treating her suicidality should have been thoroughly considered before concluding that revoking the deportation order was necessary.
Moreover, the Court ruled that the Minister for Justice was entitled to take into account the floodgates argument and to refuse to quash the deportation order because other people might abuse a suicide-based exemption. The minister had argued that allowing suicide-based exemptions would open "a Pandora's box" with the effect of "paralysing" the operation of the rule of law in general.
The concept of suicide-based exemptions from law is a new one in the Irish legal system and it warrants careful consideration. There are many cases, like the Cosma case, where people have presented psychiatric evidence regarding their suicidal ideation because of a deportation order or a European Arrest Warrant; should they now be granted exemptions by the courts?
There are also many unfortunate instances of Irish people who are suicidal because of crippling financial constraints; should they also be granted suicide-based exemptions from making mortgage repayments or paying taxes? Before embarking on this entirely novel approach to legislative obligation, shouldn't we ask the question whether there is psychiatric evidence supporting suicide-based exemptions from law as an effective way of treating suicidality?
The legal reality is that there is no obligation on the Government deriving from the Constitution or from the European Court of Human Rights or from the Supreme Court to propose legislation for a suicide-based exemption from the right to life.
When we hold to that legal reality then we can begin to debate the real question: is it just to propose that the right to life of one person can be denied if another threatens to commit suicide due to the very existence of that first person? This is the question that should be discussed in Dáil Éireann this week.
Dr Maria Cahill is a Lecturer in Constitutional Law in University College Cork and was invited by the Oireachtas Health Committee to give evidence at the hearings on the Heads of Bill in May.
by Dr. Maria Cahill, Faculty of Law, UCC