As long as Enda Kenny is in power, women like Amanda Mellet will continue to suffer
Published 15/06/2016 | 02:30
Last week's ruling by the United Nations Human Rights Committee on Amanda Mellet v Ireland once more brought to global attention the dichotomy in our State system and its treatment of pregnant mothers in cases of fatal foetal abnormality.
The UN committee found that our country's prohibition and criminalisation of abortion services violated the human rights of Ms Mellet and had caused her "intense physical and mental suffering".
The ban on terminations for medical reasons is not a ban, it is merely a 'NIMBY' gesture. As the obstetrician employed by the HSE gives you the bad news, they don't ban you from taking action; you can leave the jurisdiction if you wish. The gardaí will not stop you getting on a plane. There is nothing unlawful about your decision, your journey or your action.
The wrong is on the part of the State. Taking a claim against the State is no easy task. Whether it is to the United Nations Human Rights Committee or, in my case, the European Court of Human Rights in Strasbourg, you would only do it to save others from the same injustice. You risk everything in your personal life for the sake of justice.
In February 2002, before the referendum in March 2002, I asked the then Fianna Fáil government why had the issue of fatal foetal abnormality not been taken into account. The Taoiseach's office response was that the issue had not been "comprehended". And that was that.
For four years the State found words to fight my case, D v Ireland. The government maintained that, as soon as the diagnosis was confirmed, I should have initiated an action in the High Court, pursued if unsuccessful to the Supreme Court, to obtain a declaration that Article 40.3.3 of the Constitution allowed termination in the case of fatal foetal abnormality, together with the necessary ancillary mandatory order.
Up to recently, the Supreme Court had a four-year backlog. Can you imagine any woman pursuing a Constitutional challenge as she walks out of the hospital? Considering nobody has done so thus far, this is the stick that will continue to be used to beat women. The Government considered that failure to bring legal questions before the High and Supreme Courts left "a vacuum precluding" the ECHR's proper examination of the case.
It claimed that the X Case had demonstrated the potential for judicial development in this area and did not exclude the possible evolution in cases such as mine.
The government wanted to prove to the ECHR that it was open to evolving and interpreting the Constitutional remedies for fatal foetal abnormality.
The government noted that, in my case, there might be an issue as to the extent to which the State was required to guarantee the right to life of a foetus which suffered from a lethal genetic abnormality. The meaning of "unborn" in Article 40.3.3 had attracted some public and academic comment, but there had been little judicial examination of the meaning of "unborn" and no case comparable to mine.
For me, though a small mercy, the most significant aspect of the State's opposition was the modicum of sympathy extended in the following paragraphs: "Accordingly, although it was true that Article 40.3.3 had to be understood as excluding a liberal abortion regime, the courts were nonetheless unlikely to interpret the provision with remorseless logic particularly when the facts were exceptional.
"If, therefore, it had been established that there was no realistic prospect of the foetus being born alive, then there was 'at least a tenable' argument which would be seriously considered by the domestic courts to the effect that the foetus was not an 'unborn' for the purposes of Article 40.3.3 or that, even if it was an 'unborn', its right to life was not actually engaged, as it had no prospect of life outside the womb. In the absence of a domestic decision, it was impossible to foresee that Article 40.3.3 clearly excluded an abortion in the applicant's situation in Ireland."
This argument,that the government was amenable at the time to testing the interpretation of Article 40.3.3. is, 10 years later, untested. Despite the case of Miss D v HSE and now, Amanda Mellet v Ireland.
When the government of the day insisted that there was scope to evolve the interpretation of Article 40.3.3 and that there was a Constitutional remedy open to me, then why now do we have resistance from Fine Gael and Fianna Fáil to a referendum? Why do we even need the bogus consideration of a Citizens' Assembly, when this robust argument was put forward in 2006 by the Fianna Fáil government in the European Court of Human Rights?
As if to enforce his commitment to do nothing but delay, Taoiseach Enda Kenny has stripped Dr James Reilly of his deputy leadership of Fine Gael, seen as a direct response to Dr Reilly's call for a referendum to repeal the Eighth Amendment last year. Dr Reilly is a rare Fine Gael politician who has met directly with parents who have had to leave the jurisdiction following the tragic diagnosis of fatal foetal abnormality.
While Mr Kenny is in power, women like Amanda will continue to suffer, every week of the year.