Tuesday 21 October 2014

Floodgates will not open as abortion bill is far too 'restrictive'

Dearbhail McDonald Legal Editor

Published 22/05/2013 | 05:00

Mrs Justice Catherine McGuinness

THE "floodgates" will not open if the Government's planned abortion bill is made law because it is "too restrictive" according to a former Supreme Court judge.

Retired judge Mrs Justice Catherine McGuinness, speaking on the final day of the Oireachtas committee hearings, said most women will travel abroad for a termination rather than apply to secure a termination under the Protection of Life During Pregnancy Bill.

TESTY

In a day dominated by testy disputes over the divisive 1992 X case – including the risk of suicide and the absence of time limits for termination – Mrs Justice McGuinness said that it was "disappointing" that the proposed definition of the unborn does not cover the foetus incapable of independent life.

Senior Counsel Sunniva McDonagh, a member of the Mental Health Commission, said that certain matters were not considered by the Supreme Court in the X case which, she said, "formulated a test without the benefit of medical evidence or best practice".

"X is silent on some of the issues that revolve around the threat of suicide," said Ms McDonagh, adding that the medical evidence seemed to be that abortion was not a treatment for suicide.

Ms McDonagh said there was a possibility of "forum shopping" by both patients and doctors if women seeking terminations were not required to be examined by a panel of two psychiatrists and an obstetrician or gynaecologist.

The current heads of the bill say that women "should" rather than "shall" be examined by specialists. "In law a mere exhortation is not mandatory or enforceable," said Ms McDonagh, adding it was understandable that there would be a reluctance to subject a woman in distress to any rigorous or invasive procedure.

Dr Ruth Fletcher, Director of the Research Centre for Law, Ethics and Society at the Keele University in the UK, said the legislature needed to exclude, from the proposed definition of the unborn, foetuses with lethal abnormalities that would not have a future independent life.

"Foetuses are the bearers of biological life and future persons, but this is not the same kind of life as that of breathing, feeling, thinking women," said Dr Fletcher, who added that criminalisation did not protect foetal life.

Barrister William Binchy, legal adviser to the Pro Life Campaign, said there was no obligation on the Oireachtas to legislate for the X case, which he described as a "wrong decision".

But Mrs Justice McGuinness, who defended the Supreme Court's decision, said it was disappointing to be "going over" the X case when it was "the law of the land".

Senior Counsel Frank Callanan said lawyers could not deny that the X case was law, even if they did not agree with it. "It is woven into the fabric of modern Irish politics . . . the X case is part of the constitutional acquit," said Mr Callanan.

Dr Maria Cahill from the faculty of law at University College, Cork, said the Constitution was uncompromising in its defence of human life.

Under the rules of statutory interpretation, Dr Cahill said it was difficult to see how the proposed legislation could be interpreted so as to prohibit late-term, full-term or even partial birth abortion.

* FIANNA Fail leader Micheal Martin is facing fresh calls from senior TDs in his party for a free vote on the Government's abortion legislation.

Finance spokesman Michael McGrath said allowing TDs and senators vote according to their conscience would "represent a form of new politics we have signed up to".

Mr Martin has ruled out a free vote, and would like his party to back the Coalition's legislation.

Irish Independent

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